ZETNIA H. DELGADO and JULIO A. DELGADO, individually et al. v. DEBRA M. EPSTEIN, M.D., and MEMORIAL HOSPITAL OF BURLINGTON COUNTY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1680-03T21680-03T2

ZETNIA H. DELGADO and JULIO

A. DELGADO, individually and

as Guardians ad Litem for

JAZMINE M. DELGADO, a minor,

Plaintiffs-Appellants/

Cross-Respondents,

v.

DEBRA M. EPSTEIN, M.D., and

MEMORIAL HOSPITAL OF

BURLINGTON COUNTY,

Defendants-Respondents,

and

GROSSMAN-LEVINE ASSOCIATES,

Defendant-Respondent/

Cross-Appellant.

_________________________________

 

Argued December 19, 2005 - Decided

Before Judges Lintner, Parrillo and Holston, Jr.

On appeal from the Superior Court of New Jersey,

Law Division, Burlington County, Docket No.

BUR-L-2235-97.

Mark J. Molz argued the cause for appellants.

Richard J. Teer argued the cause for respondents, Debra M. Epstein, M.D., and Grossman-Levine Associates (Bressler, Amery & Ross, attorneys; Mark M. Tallmadge and Mr. Teer, on the brief).

Stacy L. Moore, Jr. argued the cause for respondent, Memorial Hospital of Burlington County (Parker,

McCay & Criscuolo, attorneys; Mr. Moore, on the brief).

PER CURIAM

Plaintiffs, Zetnia and Julio Delgado (plaintiffs), individually and as guardian ad litem for their daughter, Jazmine Delgado, filed a complaint alleging medical malpractice by defendant, Debra Epstein, M.D., and her employer, Grossman-Levine Associates (collectively physician defendants), and Memorial Hospital of Burlington County (the hospital), and seeking damages for injuries sustained by Jazmine during her birth as well as for their own emotional distress. Following a trial during which the father's claim for emotional distress was dismissed, the jury found Epstein 85% liable and the hospital 15% liable for the child's injuries. The jury awarded the child $200,000 in damages, but found no cause of action on the mother's emotional distress claim. Accordingly, the court entered judgment against the hospital for $30,000, plus $13,354.10 interest, for a total of $43,354.10, and against the physician defendants in the amount of $170,000. The court assessed prejudgment interest only against defendant, Grossman-Levine, in the amount of $77,562. Thereafter, the court denied plaintiffs' motion for a new trial on damages and motion for additur with respect to Jazmine's claims, and also denied plaintiffs' motions for a new trial on the emotional distress claim of the mother. Plaintiffs appeal from the order dismissing the father's emotional distress claim and the order denying plaintiffs' motion for a new trial on damages for the mother and daughter, or in the alternative, additur as to the daughter. The physician defendants cross-appeal from the order granting prejudgment interest. We affirm in all respects.

On January 28, 1997, at approximately 12:50 p.m., plaintiff, Zetnia Delgado, gave birth to her third child, a daughter, Jazmine. The events surrounding delivery of the infant at the hospital form the basis for this medical malpractice action. At 10:45 a.m., the mother's obstetrician, Dr. Epstein, prescribed Pitocin to induce the delivery. At 11:30 a.m., the mother's contractions were two-to three-and-a-half minutes apart, a "good rate" for delivery, and at 12:45 p.m., she had the urge to push. The delivery room nurse, Margaret Toomey, notified Epstein. At 12:46 p.m., Epstein came into the room and did a vaginal exam that indicated the mother was completely dilated. The father was also present in the room.

The nurse then removed the bottom half of the bed, and turned to put that portion of the bed aside. Epstein, who was only about two feet away, had "turned for a second" to retrieve her right glove from the delivery table, about a foot-and-a-half away, and put it on her hand. Epstein heard the mother scream, and although she did not see the baby leave the mother's body, first saw the infant about five feet in the air and then "hit the floor, and its cord had pulled it back in like a recoil and it was under the mom's right foot." Epstein was standing "about three feet from the patient's peroneal." She estimated that the baby traveled approximately three feet from the mother, and fell from a distance of approximately five feet to the floor. According to Epstein, "[t]he cord stretched to its maximum stretch point" and "then it recoiled." Epstein retrieved the baby from where she had landed under the bed.

Jazmine sustained a skull fracture and an epidural hematoma, or bruise, on the right side of her head that was caused by her fall to the floor. The hematoma indicated "there was significant trauma . . . to cause a bleed underneath the site of the fracture." There was "some swelling on the right side of the child's head," but it "actually didn't look too much more significant than what many babies get" at the time of delivery.

Jazmine's Apgar scores at one minute and nine minutes after birth were "nine" out of ten. The score measures fetal well-being in terms of heart rate, respiration, muscle tone, reflex irritation and color.

The next day, January 29, 1997, Jazmine was examined by Dr. Thomas O'Donnell, chief of pediatrics at the hospital. Jazmine's neurological exam was "normal," and she was "alert, active" and "nursing well." Her "reflex protocols" also were "normal."

However, when he examined the baby the next day, on January 30, Dr. O'Donnell found that she had "obvious neurological compromise." During his examination

[T]he child was crying. The child then became quiet, almost appeared to be going off to sleep at which point the child's eyes deviated to the right and upward lasting about four or five seconds. This occurred approximately three or four times lasting

four or five seconds over about an hour's time.

Dr. O'Donnell interpreted this as seizure activity, related to the impact the baby sustained when she hit the floor, and requested a CT scan. Jazmine was placed on Phenobarbital for the seizures. The baby had another seizure while in the hospital and an episode of bradycardia in which her heart rate dropped below the standard of eighty beats per minute. As a result, she was placed on a twelve-hour monitor that showed one other episode, "[n]ot necessarily" related to the fall. Jazmine was discharged on February 3, 1997, and had experienced no seizures in the previous seventy-two hour period. When Dr. O'Donnell last saw Jazmine on February 24, 1997, her prognosis was good and her neurological evaluation was normal.

Another doctor, Hugh O'Donnell, a neonatologist, also examined Jazmine at the hospital. He explained that infants' skulls have "tremendous compliance moldabilty" that allows them to be born. The soft tissue of the scalp and brain "has a high water content" and the forces of any fall can be absorbed in the scalp, the skin, and the "galeal" or "helmet layer," and the bones that protect the brain. Jazmine's x-rays showed a linear fracture, indicative of low impact, rather than a depressed fracture that would separate or displace the bone. However, "the fracture was sufficient to cause some bleeding underneath the skull on the inner layer of the skull and the outer layer of the brain." The hematoma was 3 centimeters long, but "there was no evidence of any bruising or hemorrhaging . . . inside the brain itself."

Based on the lack of any injury inside the brain and the infant's improving neurological exam when he last examined her on March 4, 1997, Dr. Hugh O'Donnell "believe[d] that it would be unlikely in the future that major issues of development would occur." Jazmine had begun to smile and was feeding well, and her eye and motor movements were "normal." She "had normal power" and "normal tone." Her reflexes were "symmetric," and overall her neurological exam was normal for her developmental stage.

However, the infant was still on seizure medication at the time, and Dr. Hugh O'Donnell "couldn't really be sure what was going to happen in the future." No treatment was necessary for the epidural hematoma. Although the neonatalogist characterized the infant's seizure's as "mild," he "was concerned about the frequency." At the last examination, Dr. Hugh O'Donnell held the "guarded belief that it was unlikely that she would have further problems," but he "didn't know." Indeed, without serial examinations, it would not be possible to predict whether the child would have developmental delays from the type of injury sustained.

In fact, the experts disagreed over the extent and duration of Jazmine's developmental delays. Plaintiff's expert in neuropsychology, Jonathan Mack, reviewed evaluation records from tests conducted on Jazmine in 1999 and 2000, which showed "significant deficits in fine motor, gross motor, expressive language, . . . [and] cognition" with an overall raw score IQ of 55, "very much in the abnormal range." At age twenty-four months, Jazmine had "significant problems in overall expressive and receptive language" and showed "solid skills up to 15 months with scattered successes up to 21 months."

Mack evaluated Jazmine on September 27 and October 1, 2002. He performed two IQ tests, one of which gave a "full scale IQ concept" of 60, which was in the .8 percentile range. The other provided a full scale IQ of 77, with a verbal score of 65, which placed her as "borderline mentally retarded."

However, on a test of pre-academic skills she "score[d] significantly better . . . than you would predict by her overall functioning on the neuropsychological measures." He attributed that to "a supportive family," and "the fact that she got a lot of special services . . ." Mack explained:

[W]hat you're seeing here is somebody with not total loss of brain function but with a rather patchy profile. So even though in some ways she may be functioning in a mentally retarded range, she's not truly mentally retarded because of the fact that there is some variability. But she may meet the criteria at some level, but she doesn't have the standard protocol of someone who you think of as mentally retarded who's flat line, bad at everything. She's got the more patchy profile that's consistent with a brain injury type of profile . . . .

Mack diagnosed Jazmine with "a developmental coordination disorder," and "a mixed receptive expression language disorder," as well as an "incipient disorder of written expression." He concluded that "the pattern of deficits . . . was . . . consistent with what you would expect from the diffuse multifocal type effects of a traumatic brain injury where there was a significant fall." Such an injury would "have diffuse effects" and "you would expect problems with memory, problems with language, problems with motoric coordination, all of the different things that we did fine [sic] here."

Significantly for present purposes, Mack further explained:

I did look at the issue of genetics, because it was mentioned in one of the reports from Germany that the sister Joslyn [sic] had some similar issues . . . and I did get some information from the team on Joslyn and it turned out that -- that Joslyn had had two traumatic episodes of seizures or two episodes of seizures at ages 1 and 2 that preceded her -- her issues that she had, and I put all of this together, and I said really, the only thing that you can pin this on diagnostically from an etiological point of view is we know for sure that there was a very significant trauma to the brain that resulted in a skull fracture, an epidural hematoma, and subsequent seizures within 48 hours.

The "very significant neurodevelopmental delays" Mack found were "consistent with the picture of traumatic brain injury based on [his] interpretation of this" and were

consistent with the literature on pediatric neurological assessment . . . and putting it all together within a reasonable degree of neuropsychological and psychological certainty, it was my conclusion that Jazmine has marked residual sequelae from this insult to the brain that after six years are permanent in nature and will lead to long-term consequences . . . as she develops.

As to Jazmine's need for future services, Mack opined that it was "a little speculative . . . at age 6," but the available information indicated that she would need "special services throughout school" of a rehabilitative and remedial nature. In his opinion, it was "hard to say exactly how much better she will get if she continues to get appropriate intervention." It is "possible" given Jazmine's "level of deficit, . . . that she will not be able to function independently and will need some ongoing supervision." Mack concluded that it was "very fair to say that she's going to have extremely significant problems in functioning" but that it was "speculative" as to "exactly what kinds of services she'll need as an adult." Mack admitted on cross-examination, however, that the same qualities of mental retardation exhibited by Jazmine could result from nontraumatic causes.

Dr. Augustine Legido, defendants' expert in pediatric neurology, concluded, based on testing and interviews, that Jazmine's "neurological evaluation was completely normal." Testing evaluated four areas: gross motor development, fine motor development, language and social interactive skills. Jazmine was able to perform all the tasks that corresponded to her chronological age, which was "in agreement with the father's information that Jasmine [sic] did not have any learning problems at school." Indeed, the father believed Jazmine "was doing good" as she was growing up. According to Dr. Legido, "[i]f Ja[z]mine really had all those signs of dysfunction [as testified to by Mack], this [test] could not be normal, there is no way."

According to her mother, at the age of one, Jazmine's walking and speech were not "normal" so they placed her in physical therapy a couple of days a week. Her speech and her motor skills improved as a result of the therapy. When asked, "[C]ompared to other children, is she any different at this point, that you can notice?", she responded: "She still -- she's very shy. She -- She tends to be more to herself. She still has a little bit of difficulty with some of the -- with her A,B,Cs, like sounds. But other than that, --." As to her future progress, the mother said:

I take it day by day. I just focus on what she's doing now and not try to think of what can happen in the future. And I just see her milestones met, you know, being met and so that less worry, but worry is always there, but not as much because I see her doing things.

In contrast, at the time of the incident, Jazmine's mother "was in disbelief" and "speechless." She was "shocked" and "mad," and "could not believe that that had [sic] happened to me." She "felt helpless because [she] couldn't do anything 'cause [the baby] was somewhere else." Her husband "just talked to [her] and calmed [her] down" but she "wasn't listening" because she "was paying more attention to what was going on in front of [her]." She thought the baby was badly injured, and afterwards the doctor told her that the baby "had suffered an epidural hematoma and a skull fracture." Asked whether she had "ever been able to forget those moments," the mother replied, "Oh, no. No, they come constantly when I look at her." Nevertheless, she never sought psychological or psychiatric treatment.

Jazmine's father, who was on an eight-day military leave to be present at birth, witnessed the baby come "straight out and hit the floor." His wife was "upset" and "crying." He was "upset, shocked; hard to explain." He returned to active duty in Texas several days after the delivery, where he first learned of the baby's fractured skull and hematoma. He was "very much" concerned.

Psychologist, John Charuk, evaluated both the mother and father. He assessed the mother's condition thusly:

Her reaction to that was something to the effect that this was bad or felt it was bad. She was worried or fearful that the baby could die or wind up paralyzed. She went on to say that subsequent to all of this, after being out of the hospital for months and months, she had frequent intrusive thoughts of the events, worries, concerns about the future development of her baby, whether the baby would develop normally, whether she would . . . in essence, what all parents want to see their children grow up to be normal, and these were the thoughts at hand.

According to Charuk, both parents experienced "a progressive worry" that would "be triggered off by the different stages of the child's life," and the "worries" of "[w]ill she walk, will she talk, will she learn, et cetera." The mother experienced "kind of a heightened state of awareness, meaning a hyper-vigilance about watching the child . . . looking for something to surface, whether that's going to be a problem or not, and so that was constantly on her mind."

As to the father, Charuk opined similarly:

Basically, similar emotional components as his wife, shock, worry, anxiety and again, the effect is over the long period of time, trying to stay comfortable with the idea that the child will potentially have some problems, maybe, because of the injury, or maybe not. It's always going to be a constant guess, constant worry, constant concern because there's going to be a number of milestones that this child has to go through yet, and she hasn't gone through.

There's school, primary grades where the basic education is, where the basic skills are learned. Will there be a learning disability as a result, all -- it yet has to unfold. And it's going to be a stress as she goes . . . the anxiety of the first report card or the first teacher conference or what have you.

When the father returned to Texas, he was "anxious and angry and frustrated." Asked whether he had formed an opinion "as to whether [the parents] were traumatized by this incident, seeing their child hit the floor?", Charuk responded: "I can't see where they wouldn't be. I mean, this is totally out of the absolute expectation of the delivering of a child." He found some evidence of "symptoms of post-traumatic stress" and identified "[f]eelings of helplessness, rage, anger, intrusive thought, frequent worries." On cross-examination, however, when asked if his testimony had been that the parents "had symptoms consistent with a diagnosis of post-traumatic stress disorder," he replied, "I'm not sure I said exactly that, but they had symptoms consistent with a traumatic reaction, yes." Charuk concluded that the parents' "trauma is never going to be forgotten," although "[t]he emotional component . . . has been diminishing."

In response to a questionnaire completed by another psychiatrist on November 17, 1998, Jazmine's mother described her present condition as follows:

I had a lot of anger and frustration, worry and sadness. It's very minimal now.

. . . .

Content with myself, happy in marriage, wonderful motherhood.

. . . .

Giving birth to my daughter and experiencing the fall of my daughter [sic] hit the floor when the doctor was not there, I sometimes have flashbacks of the incident when I look at her now. For right now, since it seems she's doing okay, physically, emotionally and psychologically, I don't think about it so much or as much as it does concern me in the long run.

Jazmine was six-and-one-half years old at the time of trial and had begun normal kindergarten.

On appeal, plaintiffs raise the following issues:

I. WHETHER THE COURT'S DENIAL OF PLAINTIFF'S REQUEST FOR A SPECIAL VOIRE DIRE WAS AN ABUSE OF DISCRETION.

II. WHETHER IT WAS HARMFUL ERROR TO OVERRULE PLAINTIFFS' OBJECTIONS TO DEFENSE COUNSEL'S OPENING STATEMENT.

III. WHETHER IT WAS ERROR FOR THE COURT TO ALLOW THE ISSUE OF GENETICS INTO THE CASE.

IV. WHETHER IT WAS ERROR TO ALLOW THE DEFENSE ATTORNEY TO SOLICIT SELF-CRITICAL ANALYSIS TESTIMONY.

V. WHETHER THE JUDGE'S EX-PARTE COMMUNICATIONS WITH DEFENSE COUNSEL AND ABORTED SETTLEMENT DISCUSSION CAUSED PLAINTIFFS UNDUE PREJUDICE.

VI. WHETHER THE COURT ERRED IN DISMISSING MR. DELGADO'S CLAIM.

VII. WHETHER THE DAMAGES VERDICTS WERE AGAINST THE WEIGHT OF THE EVIDENCE.

We will address these issues in the order raised.

(A)

(i)

We find no merit to the argument that the court erred in denying plaintiffs' request for the jury to be voir dired on the issue of caps on damages in medical malpractice lawsuits. Under Rule 1:8-3(a), "the court shall interrogate the prospective jurors in the box" and "[t]he parties or their attorneys may supplement the court's interrogation in its discretion." However, the trial judge "must exercise considerable restraint over supplementary questioning by counsel." State v. Manley, 54 N.J. 259, 282 (1969). The rule relies on the experienced judgment of the trial judge to control the scope and content of the supplemental questioning. Id. at 282-83.

Here, the court properly determined to ask the more general question of what, if anything, the jurors may have heard in the media about medical malpractice lawsuits. By phrasing the inquiry as such, the court avoided directly interjecting into the proceedings a contentious and controversial issue, while at the same time giving the jury the opportunity to reveal any bias or pre-judgment in that regard. Indeed, plaintiffs' counsel even agreed to this approach and that "[i]t may be better to address it through an instruction, and I wouldn't have any objection to that."

There is no indication in the record that any juror, in response to the court's general inquiry on voir dire, raised the issue of caps on damages. Nor is there any indication in the record that plaintiffs ever requested an instruction on caps. In any event, the jury was instructed properly that it was the sole determiner of the extent of damages. Members of a jury are duty bound to follow the court's instructions faithfully, State v. Compton, 304 N.J. Super. 477, 483 (App. Div. 1997), certif. denied, 153 N.J. 51 (1998), and we must presume that they have done so. State v. Walker, 33 N.J. 580, 589 (1960). There is no indication here that the jury's damage award of $200,000 was the result of anything other than its careful consideration of the evidence, or was otherwise affected by public opinion that encouraged caps at that or any other level in New Jersey.

(ii)

Plaintiffs next challenge certain aspects of the defense's opening statement, most critically, its use of an exhibit (D-8), which is not part of the record. As such, we are unable to determine whether, as now claimed by plaintiffs, the demonstrative aid was inappropriate. Simply put, bare allegations of error unsupported by argument or citations present no issue for appellate review. Shaw v. Calgon, Inc., 35 N.J. Super. 319, 329 (App. Div. 1955).

We are further satisfied that plaintiffs' challenges to other aspects of the defense's opening are all without merit. Suffice it to say, curative instructions were given where appropriate, and the jury was charged overall, "not to give any consideration to any opinions of counsel," and to base their verdict on the evidence and not counsels' statements. The jury is presumed to have followed these directions. Walker, supra, 33 N.J. at 589.

(iii)

Plaintiffs' principal challenge on appeal is to defendants' alleged insinuation throughout trial that Jazmine's developmental problems were genetic, not traumatic, in origin, because of similar traits exhibited by her older sister, Jocelyn. This argument too lacks merit.

In the first place, the court ruled favorably on plaintiffs' in limine motion to preclude defendants' expert, Legido, from testifying as to a genetic basis for Jazmine's alleged developmental delays. However, because plaintiffs' own expert, Mack, testified in deposition that family history was important in his evaluation and relevant to the issue of emotional distress, the court further ruled:

I am going to allow information regarding Jocelyn's condition or situation to come in due to its relevancy to the claim or [sic] emotional distress that leaves each side the opportunity to argue that either the emotional distress suffered by the parents was increased or going to take the fact that because this was a situation they had been through before that the emotional distress was not as severe as claimed by the plaintiff.

And because Dr. Mack considered the information in coming to his conclusion that developmental delays suffered by the minor plaintiff were as a result of the fall, his evaluation in terms of other information he may have considered, I'm going to allow to be explored.

However, counsel is not permitted to argue or ask the jury to draw the inference that the developmental delays caused a claim by the minor [that] were caused by genetic predisposition. There being . . . a lack of expert testimony on the part of the defendant to make that link.

Consequently, on the mother's cross-examination, she was asked about similarities in her daughters' conditions. Although plaintiffs' counsel did not object during any portion of this line of questioning, counsel later moved for a mistrial on the basis that the questions violated the court's ruling. The court denied the motion, reasoning:

The premise of the argument is that counsel argued a genetic link. There was no argument here. This was straight question and answer. Questions as to facts, answers as to facts. And counsel did not argue or draw any conclusions or ask the jury to draw that inference in accordance with my rulings. It is not necessary nor could I compel counsel to ask a question with regard -- more specific question with regard to emotional distress. It's up to counsel to tie it all up in the closing, asking the jury to infer that this particular party may not have suffered the emotional distress to the level that she claims as a result of developmental delays, experienced by this particular child because this was something she's already been through or -- or rather similar such reasons.

I don't believe that the jury's been so tainted such that there could not be a fair trial in this matter . . . .

Plaintiffs now argue that the court erred in allowing defense counsel to use information about Jocelyn's condition on the issue of their claim of emotional distress because such evidence was prejudicial and its probative value "quite remote." We disagree.

The determination of whether the "probative value [of the evidence] is substantially outweighed by the risk of . . . prejudice" is left to the broad discretion of the trial court. N.J.R.E. 403; Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999). A trial court's "[d]eterminations pursuant to N.J.R.E. 403 should not be overturned on appeal 'unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide off the mark that a manifest denial of justice resulted.'" Green, supra, 160 N.J. at 492 (quoting State v. Carter, 91 N.J. 86, 106 (1982)).

Here, as the trial judge properly noted, evidence of Jocelyn's developmental delays was relevant to the issue of the parents' emotional distress over similar conditions allegedly being experienced by Jazmine. Apparently, plaintiffs had endured the same type of experience with Jocelyn, who seemingly overcame her difficulties after receiving the same treatment Jazmine later underwent.

Moreover, any error in the admission of such evidence was invited by plaintiffs who injected this very issue into the trial of their own accord. Indeed, the court allowed defendants' counsel to "explore" the issue with plaintiffs' expert, Mack, on cross specifically because Mack himself had "considered the information [including] that developmental delays suffered by the minor plaintiff were as a result of the fall." In fact, at trial Mack testified on direct that he had considered the issue of genetics because Jazmine's doctors themselves had raised it. Mack then explained why he rejected genetics as the cause of Jazmine's developmental problems.

Actually, the issue of Jocelyn's condition arose even prior to Mack's testimony. Plaintiffs' psychological expert, Charuk, testified that Jazmine's only "deficit[]" or learning disability of which he was aware was that she experienced a speech delay. His report had discussed the fact that Jazmine had several siblings who could "be used as yardsticks" for comparison. On cross-examination, defense counsel questioned Charuk on whether he believed that the mother "would naturally have a tendency to compare Jasmine [sic] and how she's coming along with Jocelyn," who was two years older; whether he was aware that "Jocelyn also had speech delays"; and whether the mother had explained "that the delays Jocelyn experienced are similar in many ways to the same [sic] of the delays that Jasmine is having."

Simply put, the court's ruling prohibited defendants' expert from opining that genetics was a causative factor and defendants abided that ruling. Indeed, any doubt in this regard is allayed by the jury's verdict of liability against defendants. Plaintiffs may not now be heard to complain that defendants were also precluded from effectively cross-examining Mack, Charuk and the plaintiff herself on her additional claim of emotional distress. The "paramount purpose of cross-examination is the impeachment of the credibility of the witness." Perna v. Pirozzi, 92 N.J. 446, 456 (1983). As with any other subject of a witness's testimony, the credibility of Mack's and Charuk's conclusions, as well as plaintiff's claim, was subject to challenge on cross-examination. Plaintiffs' counsel offered no firm objection, and we may infer that the failure to object represents the decision of counsel to agree or, at least, to passively acquiesce in the line of questioning. City of Linden, County of Union v. Benedict Motel Corp., 370 N.J. Super. 372, 398 (App. Div.), certif. denied, 180 N.J. 356 (2004).

Accordingly, we find no error in the admission of evidence of Jocelyn's condition.

(iv)

Plaintiffs next argue it was error for the court to allow Epstein's counsel to solicit "self-critical analysis" testimony from his client. We disagree.

First, it was plaintiffs' counsel who opened the door to such testimony by questioning Epstein as to her role and work on the hospital's quality assurance committee, as to hospital procedures, and as to certain omissions in her incident report. Second, although the evidence initially appeared to indicate that the hospital had found no wrongdoing on anyone's part, on cross-examination plaintiffs' counsel was able to clarify that the hospital in fact took corrective action after the accident.

Third, as already noted, the jury returned a finding of liability against defendants and, therefore, it is difficult to perceive, even if erroneously admitted, how the so-called self-critical analysis testimony prejudiced plaintiffs.

(v)

Equally meritless is plaintiffs' argument that either the court or defense counsel acted improperly in conducting the settlement discussions. Plaintiffs rejected one offer, accepted what they believed to be a firm higher offer, and then withdrew their acceptance. A miscommunication had led defendants to believe that plaintiffs were seeking a different, higher amount. The parties were given time to resolve any misunderstanding and reach a firm agreement. They did not, and the trial continued. There is no basis for plaintiffs' apparent suggestion that they are entitled to a new trial on damages based on improper conduct of the court in conducting the settlement negotiations.

(vi)

We next consider plaintiffs' arguments that it was error to dismiss the father's emotional distress claim, and that the verdicts were against the weight of the evidence. We reject both these contentions as well.

As to the former, in considering a motion for involuntary dismissal at the end of plaintiffs' case, a trial judge must determine

whether "the evidence, together with the legitimate inferences therefrom, could sustain a judgment in * * * favor" of the party opposing the motion, i.e., if, 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.

[Dolson v. Anastasia, 55 N.J. 2, 5 (1969).]

A motion for involuntary dismissal "shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." R. 4:37-2(b). The appellate court is governed by the same standard in its review of the trial court's decision. Dolson, supra, 55 N.J. at 7.

In Carey v. Lovett, 132 N.J. 44, 62 (1993), the Court set forth the standard to be applied when parents seek emotional distress damages arising from medical malpractice during the birth process. The Court's analysis began with the recognition that "[a]ny time a doctor negligently injures a child it is foreseeable that the parents will suffer emotional distress." Id. at 58. But it distinguished between the mother's and the father's claim. Id. at 59-61. Because of a mother's "unique relationship" with the fetus and the possibility that she might be anesthetized during the birth, she is not required to prove that she was "contemporaneously aware of the malpractice and the injury" as it occurred. Id. at 59-60. However, a father must prove that he stands in an intimate family relationship with the mother and baby, and that he "contemporaneously observe[d] the malpractice and its effects on the victim." Id. at 61. Unlike the mother, whose "shock" is presumed, the father must also prove that he was "shocked by the results." Id. at 59-62.

Both parents are required to show that they suffered emotional distress beyond that which might be expected with the birth of a child, even a problematic one:

[T]o prove a claim for emotional distress arising out of the injury or death of a fetus, the mother must prove that she suffered emotional distress so severe that it resulted in physical manifestations or that it destroyed her basic emotional security. The father's emotional distress must be equally severe. The worry and stress that attend the birth of every child will not suffice. Nor will the upset that every parent feels when something goes wrong in the delivery room.

[Id. at 62.]

Governed by these standards, the court properly dismissed the father's emotional distress claim at the close of plaintiffs' case. The father's sole testimony on the subject was that he was "upset, shocked; hard to explain." Charuk described the father as feeling "anxious and angry and frustrated" and both parents as experiencing "shock, worry, [and] anxiety." However, on the issue of trauma, Charuk simply offered the observation that he "can't see where [the parents] wouldn't be" traumatized. He then described generalized symptoms of trauma but was unable to explain the basis for finding those symptoms in the parents. Charuk's testimony in this regard amounts to no more than a net opinion which fails to support the claim that the father experienced severe emotional distress.

The plaintiffs were also not entitled to a new trial on damages for the mother or a new trial on damages or additur with regard to the award for Jazmine.

The standard that controls our disposition is well-settled. We do not reverse a trial court's ruling on a motion for a new trial "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1; Baxter v. Fairmont Food Co., 74 N.J. 588, 599 (1977). We defer to the trial court's determination of a witness's credibility and demeanor. Dolson, supra, 55 N.J. at 7; see also Carey, supra, 132 N.J. at 66 (noting that "an appellate court should . . . defer[] to the trial court's 'feel of the case'" (quoting Baxter, supra, 74 N.J. at 600)). As do trial courts, we also defer to "the quantum of damages" that a jury assesses "unless it is so disproportionate to the injur[y] and resulting disabilit[y] shown as to shock [the] conscience and to convince [the judge] that to sustain the award would be manifestly unjust." Taweel v. Starn's Shoprite Supermarket, 58 N.J. 227, 236 (1971); see also Ryan v. KDI Sylvan Pools, Inc., 121 N.J. 276, 297 (1990); Baxter, supra, 74 N.J. at 596; Sweeney v. Pruyne, 67 N.J. 314, 315 (1975); Tonelli v. Khanna, 238 N.J. Super. 121, 130 (App. Div.), certif. denied, 121 N.J. 657 (1990); Tronolone v. Palmer, 224 N.J. Super. 92, 97 (App. Div. 1988).

As to Jazmine, the trial court denied the motions for a new trial and additur, reasoning that defense expert testimony to the effect Jazmine's neurological examination and psychomotor development were normal was "consistent with the parents['] own evaluation" that "indicat[ed] that she was doing fine." It concluded, therefore, that "[t]here was ample evidence before the jury for them to conclude that Jasmine did not suffer developmental delays," and thus the amount of the jury award did not shock the court's conscience nor was it manifestly unjust.

We agree with this assessment. Plaintiffs provide no support for their arguments other than the assertion that the award was "so low in comparison to the injuries that it should shock the conscience of the court." While undoubtedly the infant suffered injury at birth, there was sufficient evidence from which the jury could find that she suffered no lasting pain or discomfort or physical or mental deficits from that injury. Although plaintiffs' expert opined otherwise, defendants' experts disagreed, as did the parents, at least implicitly. Moreover, even if plaintiffs' claim that Jazmine experienced some mental or developmental problems as a result of the injuries was accepted by the jury, she sought no compensatory damages for remedial tutoring, physical therapy or prospective lost wages. There is no basis to increase the amount of the jury's award or grant plaintiffs a new trial to correct any clear error or mistake by the jury.

So too with respect to the mother's emotional distress claim. As noted, the mother's shock and distress are presumed in the law. Carey, supra, 132 N.J. at 60. However, she was required to show that her "distress [was] so severe that it resulted in physical manifestations or . . . destroyed her basic emotional security." Id. at 62. Neither parent had proffered evidence of any physical manifestations. And, while the mother testified to her upset, worry and concern after her daughter's accident, she also said that she received substantial support from her and her husband's families, and that she was emotionally and physically able to continue to live her life and care for her children. The jury's conclusion that her reaction did not reach the level of severe emotional distress does not shock the conscience or indicate a manifest injustice occurred.

(vii)

We have considered plaintiffs' remaining claims and are satisfied that none of them is of "sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(1)(E).

(B)

On cross-appeal, defendants argue that the award of pre-judgment interest against Grossman-Levine Associates must be reversed as violative of N.J.S.A. 17:30A-5. We disagree.

The jury concluded that Epstein acted negligently in the course of her employment with Grossman-Levine Associates and accordingly, judgment was entered against both defendants. Defendants argued below that because plaintiffs' claims against them were defended through the New Jersey Property-Liability Insurance Guaranty Association (PLIGA) due to their insurer's insolvency, the award of prejudgment interest was barred by the New Jersey Property-Liability Insurance Guaranty Association Act (Act), N.J.S.A. 17:30A-1 to -20. The trial court rejected this contention, concluding that defendants were equitably estopped from asserting the Act's protection due to their representation to the court and defense counsel throughout trial and settlement negotiations that it was uninsured. We agree.

It is clear that under the Act, an injured party cannot recover prejudgment interest on an unliquidated claim against PLIGA. N.J.S.A. 17:30A-5. Less clear is whether an injured party may recover prejudgment interest against the insured of an insolvent carrier. There is a split of authority on the issue. Compare Lehmann v. O'Brien, 240 N.J. Super. 242 (App. Div. 1989), and Hendricks v. A.J. Ross Co., 232 N.J. Super. 243 (App. Div. 1989), with Wilton v. Cycle Trucking, Inc., 240 N.J. Super. 326 (App. Div. 1989). But even assuming the Act's protections extend to insureds generally, we are in agreement with the trial court that under present circumstances, defendants are equitably estopped from claiming the exemption.

To establish equitable estoppel, "plaintiffs must show that defendant engaged in conduct, either intentionally or under circumstances that induced reliance, and that plaintiffs acted or changed their position to their detriment." Marsden v. Encompass Ins. Co., 374 N.J. Super. 241, 249 (App. Div.), certif. denied, 183 N.J. 257 (2005). "The doctrine . . . prevent[s] injustice by [precluding] a party [from] repudiate[ing] a course of action on which another party has relied to his [or her] detriment." Ibid.

Here, at the time judgment was entered, and throughout the trial and settlement negotiations, defense counsel had represented that Grossman-Levine was uninsured, and that the existence of coverage by PLIGA had "since come to light, post verdict." Yet, the establishment of Grossman-Levine's insurance status was solely within defendants' knowledge and control. Moreover, plaintiffs relied, to their detriment, on defendants' repeated assertions that there was no coverage for the claim against Grossman-Levine. As the trial court found:

In this case, there was clearly detrimental reliance. The plaintiffs wanted more money than had been offered by the defendants. And the plaintiffs were told that no more coverage was available either because Grossman Levine, as a defendant, a non-contributing defendant to the proposed settlement, was either uninsured or not covered.

As a result, plaintiffs were "forced to go to verdict" and risk the verdict would be less than the settlement offer, which it was. It appears that plaintiffs made their decision not to settle based on their belief that they would be able to obtain prejudgment interest and pursue judgment against Grossman-Levine "without the intervention of insurance." As the court found, plaintiffs relied on defendants' representations to their detriment. As such, the trial court properly applied principles of equitable estoppel to require defendant, Grossman-Levine to pay prejudgment interest.

The trial court also properly declined defendants' request to suspend prejudgment interest during the period the matter was stayed initially because the father was on military duty and then again due to the insolvency of the defendants' insurer. The trial court found that neither "the distressed state of an [insurance] industry" nor placement of the action on the military inactive list were considered extraordinary circumstances warranting the suspension. We agree.

Under Rule 4:42-11(b),

[e]xcept where provided by statute with respect to a public entity or employee, and except as otherwise provided by law, the court shall, in tort actions, including products liability actions, include in the judgment simple interest . . . from the date of the institution of the action or from a date 6 months after the date the cause of action arises, whichever is later, provided that in exceptional cases the court may suspend the running of such prejudgment interest.

[R. 4:42-11(b) (emphasis added).]

As Judge Pressler explains:

[P]rejudgment interest is not a penalty but rather its allowance simply recognizes that until the judgment is entered and paid, the defendant has had the use of money rightfully the plaintiff's. Thus prejudgment interest is and should be allowed even when trial is delayed

because of placement of the action on the military list or on the inactive list.

[Pressler, Current N.J. Court Rules, comment 8 on R. 4:42-11 (2005).]

The authority to suspend interest "should . . . be most cautiously exercised, and always with consideration of the underlying purpose and philosophy of the rule[.]" Ibid.

 
Defendants have shown no reason to warrant suspension in this case.

Affirmed.

Plaintiffs' counsel did not object, but requested a side-bar that was not transcribed. Questioning by defense counsel continued as to whether Jocelyn's condition was relevant to Charuk's determination that the parents had suffered emotional trauma based on Jazmine's problems, and Charuk insisted it was not.

(continued)

(continued)

34

A-1680-03T2

January 24, 2006