LAURIE HEIN, et al. v. COMMUNITY MEDICAL CENTER, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2418-04T22418-04T2

LAURIE HEIN, Administrator of the

Estate of Dawn Byrnes, and

Individually; JORDAN TAYLOR HEIN, a

minor through her adoptive parents

and legal guardians LAURIE HEIN and

TIMOTHY HEIN; CAROLE BYRNES; and

JAMES BYRNES,

Plaintiffs-Appellants,

v.

COMMUNITY MEDICAL CENTER, MARY ALICE

LAMMANA, KATHLEEN KELLY, and CHARLES

FARRELL, M.D.,

Defendants-Respondents,

and

TOMS RIVER OB-GYN ASSOCIATES;

JOSEPH CUDIA, M.D.; PHILIP

MASSIMINO, M.D.; RONALD NEAL, M.D.;

ROBERT PRESSO, M.D.,

Defendants.

 
 

Argued: May 23, 2006 - Decided:

Before Judges Axelrad, Payne and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-1937-00.

Joseph L. Messa, Jr., argued the cause for appellant (Messa & Associates, attorneys; Mr. Messa and Anastasia M. Buccino-Roth, on the brief).

Donald Grasso argued the cause for respondent Charles Farrell, M.D. (Orlovsky, Grasso, Bolger, Mensching, Halpin & Daley, attorneys; Mr. Grasso, of counsel; Colleen L. Brandt, on the brief).

Robert A. Giannone argued the cause for respondents Community Medical Center, Mary Alice Lammana, R.N., and Kathleen Kelly, L.P.N. (Ronan, Tuzzio & Giannone, attorneys; Mr. Giannone, on the brief).

PER CURIAM

This medical malpractice case arose from the death of a twenty-six-year-old woman following a dilation and curettage (D&C) procedure performed about six hours after she gave birth. Several surviving relatives filed suit claiming damages for wrongful death, survivorship and negligent infliction of emotional distress. Following settlement with Dr. Philip Massimino, the obstetrician/gynecologist performing the D&C procedure, the case proceeded to trial against Community Medical Center (CMC), post-partum nurse Mary Alice Lamanna and post-partum LPN Kathleen Kelly, and the D&C anesthesiologist, Dr. Charles Farrell. The judge dismissed the emotional distress claims prior to jury consideration, and following a fifteen-day trial, the jury found in favor of all defendants on the remaining counts. Plaintiffs appeal the no-cause of action verdict, alleging numerous trial errors regarding the admission of evidence and the conduct of the trial. We affirm.

I

Dawn Byrnes was admitted to CMC on June 15, 1998 for evaluation for hypertension. Because of the hypertension, the pregnancy was induced, but the induction was unsuccessful, and Dawn was discharged.

Dawn was readmitted to CMC on June 25, 1998, when her doctors found that she was suffering from hypertension, edema, proteinuria and preeclampsia (also called toxemia). The drug Pitocin was administered to induce her labor. After a labor of over twelve hours in which she frequently vomited, Dawn gave birth to her daughter Jordan at 8:24 a.m. on June 26, 1998.

Dawn was transferred from labor and delivery to the post-partum unit at 10:50 a.m. She was placed in the care of Kelly, an LPN with thirty years of experience. Lamanna was the RN responsible for supervising LPN Kelly. LPN Kelly took Dawn's vital signs and reported to Lamanna that Dawn's blood pressure was elevated. Nurse Lammana told her to put Dawn on left-sided bed rest. LPN Kelly found Dawn had expelled a moderate amount of lochia, which is a mixture of blood and fluid, and she changed the peri pad and the chuck pad under Dawn several times.

Around noon, LPN Kelly helped Dawn out of bed to the bathroom, but Dawn reported to the nurse that she could not urinate. At 12:10 p.m., LPN Kelly noted Dawn's uterus was displaced to the right, which could be a consequence of a blood clot or urine. LPN Kelly checked both of Dawn's legs for evidence of blood clots, but found none.

At about this time, Dawn's brother-in-law, Timothy Hein, stopped in for a visit. When he arrived, Dawn was in the bathroom, and he heard her say she was unable to urinate. During his visit a doctor also came in to look at Dawn with regard to a gallbladder problem she had been having and pushed on her stomach. Hein left shortly thereafter.

At 1:30 p.m., Kelly again escorted Dawn to the bathroom, where she urinated and expelled a moderate amount of blood clots. There were also blood clots on the chuck pad, including a grapefruit-sized clot. Although LPN Kelly knew that Dawn's bleeding was abnormal, she did not measure the urine output or the clots. She massaged Dawn's fundus to try to get the uterus to contract.

LPN Kelly told Nurse Lamanna of the bleeding and clots and asked for assistance. At 1:45 p.m., Nurse Lammana hung a bag of Pitocin at 150ccs per hour based on standing orders. At 2:00 p.m., LPN Kelly injected Dawn with .2 mg of Methergine, according to what she said was Dr. Massimino's standing order.

Dr. Massimino arrived at about 2:30 p.m. and observed another expelled clot of about 500 cc's. He determined Dawn needed a D&C and ordered her moved to the operating room. According to Nurse Lamanna, when Dawn was taken into surgery she was alert and oriented and her skin was pink, not pale.

The anesthesiologist, Dr. Farrell, visited Dawn in her room prior to surgery. Dawn was awake and alert. Dawn informed him she had eaten a bagel at about 10:00 a.m. and soup at 1:00 p.m. Dr. Farrell asked a nurse in the room if Dawn had been voiding and was told she had been. The nurse also told him Dawn's vitals were stable. Dr. Farrell looked at the pad and the toilet to see her blood loss and determined it was between 500 ccs and 600 ccs. The nurses told him about the large clots. He determined since Dawn had eaten recently, he would administer a saddle block spinal anesthesia.

Once Dawn was in the operating room, Dr. Farrell administered a 50 mg dose of a local anesthetic called Lidocaine through a spinal needle into her back. It was the minimum amount of the shortest acting drug that could be administered, meaning that it lasted only thirty to forty-five minutes.

Dr. Massimino removed a large clot stuck in the lower part of Dawn's uterus, which was preventing the uterus from totally contracting. Dr. Massimino explained that if the uterus could not contract, the patient would continue to bleed. Once he removed the clot, the uterus clamped down very hard, and Dawn immediately stopped bleeding. Dawn's vital signs remained normal throughout the procedure.

Dawn was stable when Dr. Massimino left the operating room at 3:30 p.m. A nurse then reported to Dr. Massimino that Dawn was having trouble breathing. Dr. Farrell administered oxygen. According to Dr. Farrell, as the lower end of the table was raised to remove Dawn from the left stirrup, Dawn "seized." As she had no pulse, at 3:43 p.m. a "code" was called. Dr. Massimino returned, and several other doctors assisted. The presumptive diagnosis was that Dawn had suffered pulmonary embolism, so she was taken to radiology to have a radiologist perform an angioplasty, but no clot was found.

Dawn was pronounced dead at 5:12 p.m.

An autopsy was performed by Dr. Hydow Park, but the manner of death could not be established. The autopsy report stated that the "cause of death" was "sudden death following digital evacuation of blood clots and curettage for postpartum intrauterine hemorrhage under Fentanyl and Lidocaine spinal anesthesia." Dr. Park found the right and left pleural cavities to contain 200 ml of clear fluid and the periocardial sac to contain 125 ml of "slightly pink clear fluid." The toxicology report detected Lidocaine and Fentanyl in Dawn's blood.

II

On June 12, 2000, this action was commenced by Laurie Hein, individually and as Administratrix of her sister's estate, Laurie and her husband Timothy as adoptive parents and legal guardians of Dawn's daughter Jordan Taylor Hein, and Dawn's parents, Carole and James Byrnes. Pertinent to respondents, Count I pled a wrongful death action; Count II pled a survival action; Count III pled negligence against the hospital; Count VII pled negligence against Dr. Farrell; Count VIII pled negligence against Nurses Lamanna and Kelly; Count IX pled an action for negligent infliction of emotional distress; and Count X pled corporate negligence against the hospital.

Pertinent to this appeal, Count IX (the only count in which Dawn's parents asserted a claim) alleged:

112. [Plaintiffs incorporate by reference the allegations of paragraphs l through lll, which pertain only to Dawn's medical condition and procedure, i.e. the delivery of her daughter, subsequent vaginal hemorrhaging, D&C procedure, and seizure and death following completion of surgery.]

113. Plaintiffs witnessed the aforementioned negligent and careless acts and omissions on the part of the Defendants herein.

ll4. As a direct and proximate result of witnessing Defendants' negligent conduct, Plaintiffs suffer severe emotional distress which has been disabling in nature, and which manifests itself physically and emotionally, all of which have persisted over time and some or all of which may continue indefinitely into the future.

ll5. As a direct and proximate result of the conduct set forth, Plaintiffs have suffered as follows:

(a) Plaintiffs' decedent, instead of being properly diagnosed and treated, was allowed to deteriorate physically;

(b) Plaintiffs' decedent suffered extended pain and suffering, emotional distress and Plaintiffs were present to view the negligent practices of the Defendants; and

(c) Plaintiffs lost such other valuables and sustained such other damages as are properly allowed by New Jersey law.

On September 27, 2002, Judge Frank Buczynski, Jr. signed an order dismissing Count IX of the complaint (negligent infliction of emotional distress) against Dr. Farrell.

There were a variety of pre-trial proceedings and orders. The last case management order required plaintiffs to submit their expert reports by June 8, 2003. Plaintiffs timely served an expert report from Dr. Mitchel Sosis, an anesthesiologist, and served an expert report of Joanna McGrath, RN about four or five weeks late, to which there was no objection. At a case management conference on December 5, 2003, the court ordered all defense expert reports to be served within fifteen days and plaintiffs' responses to be served within forty-five days of receipt. On March l5, 2004, plaintiffs served on defendants an expert report of perinatologist Dr. Robert Carpenter dated March 7, 2003. Respondents moved to bar the report as untimely, particularly in view of the imminent trial date of June 7, 2004, and as raising a new theory of liability against labor and delivery nurses who were not named as defendants. Following oral argument on April 30, 2004, Judge Thomas O'Brien granted respondents' motion and precluded Dr. Carpenter's testimony.

Plaintiffs' general theory of the case was that Dawn suffered from hypovolemia (diminished blood volume) caused by the loss of blood and inadequate fluid volume, which condition was masked by the administration of drugs such as Methergine; that the condition led to shock when her legs were taken from the stirrups following the D&C; and that the shock led to cardiac arrest. More particularly, plaintiffs' liability theories included a failure by the nurses to: (1) respond, assess and report Dawn's post-partum hemorrhage; (2) adequately address Dawn's hydration status in the face of heavy bleeding and signs of dehydration; and (3) notify anesthesia personnel about Dawn's history, treatment and hydration status before anesthesia was administered.

Plaintiffs' theory of liability against the anesthesiologist was a failure to: (1) perform necessary laboratory blood studies on Dawn in the face of heavy bleeding and signs of dehydration; (2) adequately assess and monitor Dawn's post-partum blood loss; and (3) administer proper medications and adequate fluid resuscitation. Plaintiffs claimed further negligence by the anesthesiologist in the administration of a spinal anesthesia that was contraindicated in the face of heavy bleeding and the administration of an excessive amount of the drug Fentanyl, thereby repressing Dawn's respiratory system.

Plaintiffs presented the testimony of McGrath, an R.N. who practiced obstetrical nursing and had a Master's degree in perinatal studies, and who was qualified as an expert in obstetrical and perinatal nursing, and Dr. Sosis, a Board-certified anesthesiologist, who also held a Ph.D in chemistry. McGrath opined that nurses Kelly and Lamanna breached the standards of obstetrical nursing care by failing to adequately respond to a post-partum hemorrhage, failing to adequately assess blood loss, and failing to notify anesthesia personnel about Dawn's history, treatment and hydration status. Specifically, she claimed the nurses should have counted the number of pads used by Dawn and should have weighed the bloody pads against a dry one to determine the blood loss, and their failure to communicate that information to the doctors was a deviation from the accepted standard of care.

Nurse McGrath was also of the opinion the nurses failed to assess and report to the doctors the intravenous fluids they had given to Dawn. Plaintiffs' expert opined that prior to being taken into surgery, Dawn was hypovolemic, and she concluded nurses Kelly's and Lammana's breach of standards of obstetrical nursing care "significantly contributed" to Dawn's death. Although plaintiffs also claimed the post-partum nurses improperly administered a medication, Methergine, that was contraindicated; however, by in limine motion the trial judge limited McGrath's testimony and held she was not qualified to testify that the use or non-use of certain medications led to Dawn's death.

Dr. Sosis opined the following actions fell below the standard of care with respect to hypovolemia: (1) the nurses failed to adequately monitor post-partum blood loss, which led Dawn to being taken to the operating room in a hypovolemic state and contributed to her death and (2) Dr. Farrell failed to provide adequate fluid resuscitation intravenously, which also contributed to the hypovolemic state. He explained that a non-urinating patient suggests the body does not have enough fluids. He opined the fact that Dawn's arrest occurred when her legs were lowered from the stirrups and she was being transferred from the operating table was "consistent with hypovolemia since raising a patient's legs shifts blood to the heart."

Dr. Sosis also maintained Dr. Massimino or Dr. Farrell should have ordered hemoglobin- or hematocrit-levels blood tests to document the level of bleeding that had occurred, and the failure to do so proximately led to Dawn's death. Dr. Sosis further opined, based on the package insert of the spinal anesthesia Lidocaine that it was contraindicated in cases of "severe hemorrhage, shock or heart block," it should not have been given to a patient, like Dawn, who had severe bleeding. He noted the insert further stated that "[c]ardiovascular manifestations are usually depressant and are characterized by bradycardia, hypotension and cardiovascular collapse, which may lead to cardiac arrest." Finally, plaintiffs' expert opined that Dr. Farrell administered excessive amounts of Fentanyl, a narcotic that can depress respiration and result in a respiratory arrest leading to a seizure. He concluded that Dawn's seizure and cardiac arrest were caused by hypovolemic shock precipitated by the spinal anesthetic, and that the excessive amounts of Fentanyl contributed to Dawn's death.

Defendants' experts testified Dawn was not hypovolemic at any time, and hypovolemia had no role in her death. They emphasized the lack of change in Dawn's vital signs and the autopsy report that indicated the presence of fluid in Dawn's heart, lungs and trachea as evidence of sufficient hydration.

Dr. Anthony Quartell, a Board-certified obstetrician/gynecologist testified for the defense that the nurses did what they needed to do immediately upon seeing the bleeding, including taking Dawn's vital signs, performing a fundal massage, and calling the doctor. Although the bleeding was not normal, if it had been "really bad," Dawn would have been pale, had a "thready" pulse and been in and out of consciousness. The records indicated, however, that Dawn was alert and oriented. Given Dawn's vital signs were normal prior to and during the surgery, Dr. Quartell concluded that Dawn did not die of hypovolemic shock. The defense expert explained when a patient is hypovolemic, her pulse is never less than one hundred, she is cold and clammy, has a dry tongue, and fades in and out of consciousness. None of that happened to Dawn. He further explained that when pregnant, a woman's blood volume increases by fifty percent to give the baby sustenance and to sustain blood lost during and after the delivery. Dr. Quartell was thus of the belief that, given Dawn's normal vital signs, however much blood she lost was not enough to cause her to bleed to death. He opined there was "no relationship whatsoever to the nursing care that [Dawn] received on postpartum and her eventual cause of death, which remains unknown."

Dr. Albert Ferrari testified for the defense as an anesthesiology expert. In response to Dr. Sosis' claim about the failure to monitor Dawn's blood loss, he testified it was not essential for an anesthesiologist to know the exact amounts of blood loss, but only the effect of the blood loss on the patient. He echoed Dr. Quartell's comment that pregnant women have an increased blood volume to counterbalance blood loss. Dr. Ferrari was of the opinion that given Dawn's normal blood pressure and heart rate, and her coherence, it was clear her blood loss did not affect her cardiovascular system and she was not hypovolemic. Accordingly, no further assessment by Dr. Farrell was indicated.

Dr. Ferrari also disputed Dr. Sosis' claim of a lack of adequate fluid resuscitation. He testified Dawn received 1500 mls of crystalloid during the anesthetic, and her blood pressure and heart rate confirmed to the anesthesiologist that there were adequate fluids administered. The defense expert also maintained Dr. Farrell did not fall below the standard of care by not ordering blood tests prior to the D&C. According to Dr. Ferrari, Dawn's continuing bleeding needed to be stopped immediately, and delaying the procedure to take a blood test would have been "totally inappropriate." He added that there were no blood tests that would have added any useful clinical information.

Dr. Ferrari also testified it was "nonsense" for Dr. Sosis to suggest that a spinal anesthesia was contraindicated. He contended plaintiffs' expert based his opinion on the erroneous conclusion that Dawn was in shock. According to Dr. Ferrari, Dawn's blood pressure was 140/80, and her heart rate of eighty was "hardly the picture of a patient in shock." Further, he explained that Dawn had recently eaten, which put her at risk of aspiration during a general anesthetic. Weighing the high risk of aspiration, which could prove fatal, against the risk of a spinal anesthesia causing cardiac problems from hypovolemia, Dr. Ferrari concluded the appropriate choice was clearly a spinal anesthetic.

The defense anesthesiologist also rejected plaintiffs' experts' conclusions of hypovolemia in view of her normal heart rate and blood pressure. He further explained that "cardiac arrest secondary to hypovolemia comes on slowly," and Dawn's arrest was sudden. Moreover, hypovolemic shock is responsive to resuscitation, and the fact that Dawn was not able to be resuscitated was "further evidence that the problem was not hypovolemia." Additionally, the autopsy showed Dawn's heart was filled with fluid, her lung parenchyma was wet, and her trachea and bronchi contained pink edema fluid, all of which was the opposite of what would happen in a patient who had hypovolemic arrest.

Dr. Ferrari disputed Dr. Sosis' claim that Dr. Farrell had used excessive Fentanyl. He testified Fentanyl had been administered in the epidural during Dawn's delivery in the morning but there was no indication from the chart or otherwise it had been given during the D&C procedure. He further pointed to the fact that Dr. Sosis stated Fentanyl could depress respiration and result in respiratory arrest, but that Dawn had no evidence of respiratory depression and did not have a respiratory arrest.

Dr. Farrell testified on his own behalf. He maintained that a general anesthetic was contraindicated in this instance, not a spinal anesthetic. He claimed a general anesthetic carried higher risks because it can cause a relaxation of the blood vessels, which could cause the patient to become hypertensive. Further, Dr. Farrell maintained that given that her blood loss had no effect on her vital signs or coherency, Dawn was not hypovolemic. During the surgery, Dawn was monitored by a pulse oximeter that measured the oxygen in her blood. He explained that if a patient were hypovolemic, her oxygenation would be affected and the pulse oximeter would not even work; however, Dawn's oxygen level remained stable throughout the procedure. Similar to Dr. Ferrari, Dr. Farrell noted that the autopsy showed blood and liquid in Dawn's heart chambers, which indicated she had plenty of blood and her bladder had fluid in it, which indicated her kidneys were working. These findings were further support for the conclusion that Dawn was not hypovolemic.

Dr. Farrell testified Dawn was given Fentanyl as part of the anesthetic administered in the morning. He further testified that, after checking the records at the pharmacy following his deposition, he came to the conclusion that "there's no way I could have given Fentanyl to this patient" because "all the Fentanyl that was accounted for that I had received, was returned minus one for another patient." Based on a prior ruling by the trial court about a pre-trial discovery issue, Dr. Farrell did not refer to a specific record, and the defense was precluded from admitting the Narcotics Administration Record into evidence as corroboration.

Plaintiffs' counsel requested to call Dr. Park, the pathologist who performed the autopsy for the medical examiner, as a rebuttal witness "about the cause of [Dawn's] death," claiming the issue was raised after Drs. Ferrari, Quartell and Farrell testified and "misinterpreted" what Dr. Park's report meant. Dr. Farrell's counsel objected. The trial court conducted a Rule 104 hearing to determine the nature and extent of Dr. Park's proposed testimony. At the conclusion of the hearing, the judge determined the only testimony appropriate for rebuttal testimony would be a response to the statement of Dr. Farrell, which had not previously come to light, that he was present at Dawn's autopsy. The judge stated:

Now, Dr. Park, he testified today as to what the cause of death, and that is what's been all along reflected in his autopsy report. He specifically said that he could not tell if this patient was hypovolemic. He never analyzed it at that particular time and subsequently cannot give that type of testimony present[ly] because he said he hasn't done that.

The only possible inconsistent testimony or contradiction is when Dr. Farrell testified that he was in the autopsy room and had instructed Dr. Park to examine the spinal . . . fluids to determine what, if any, medication or anesthesia had gotten into the spinal column. Dr. Park has indicated that he doesn't recall who else was in the room at that particular time. But none of his testimony rebuts any of the prior testimony nor it meets a challenge.

Now, if you wish to call Dr. Park for the limited purpose of establishing that he has not a recollection of Dr. Farrell being in the autopsy room, you may do that.

The other observation that I make is Dr. Park was available to everyone from day one in the commencement of the trial.

Plaintiff's counsel chose not to call Dr. Park as a limited rebuttal witness.

As to plaintiffs' negligent infliction of emotional distress claim, an in limine motion was brought by the hospital and nurses to strike Count IX of plaintiffs' complaint on similar grounds raised by co-defendant Farrell, i.e. their failure to witness the alleged malpractice and connect it to the injury. In response, plaintiffs asserted a claim for negligent infliction of emotional distress stemming from an alleged miscommunication regarding whether Dawn was alive or dead after the surgery. Following oral argument on November 29, 2004, the trial court dismissed the claim of Dawn's infant daughter, and ruled as to the other plaintiffs that it would permit testimony on the issue as to the hospital and nurses and resolve the issue on a motion at the end of plaintiffs' case.

Laurie testified that at 3:30 p.m. on June 26, 1998, she received a telephone call from a nurse at the hospital, advising her to return to the hospital right away but would not tell her the reason. Laurie, who was an LPN, returned to the hospital and found the nurses on the maternity ward standing around crying. One of them said, "I'm sorry" and told her that her mother was in Dawn's room. Laurie entered Dawn's room to find her mother crying. Her mother told her that Dawn had died. She testified that Dr. Massimino then entered the room and said they could not save Dawn. A nurse manager, Donna Schreiber-Torres (Schreiber-Shay at the time of trial) came in and said she was sorry for their loss, stating she had suddenly lost her husband a year earlier.

According to Laurie, then a chaplain came in and when Carole asked the chaplain to leave she replied, "I don't know why everyone is so upset. She's not even dead yet." Dr. Massimino returned and asked Carole to sign a consent form to allow them to attempt a desperate measure to revive Dawn. When Laurie and Carole said, "we thought she was dead," he explained they wanted to take Dawn to x-ray because they might find a pulmonary embolism, which they could remove. Carole then signed the consent. Laurie acknowledged that as of that point no one from the hospital actually told her that her sister had died. Laurie believed Schreiber-Torres then came in and said Dawn had a heartbeat and they were preparing a bed for her in the critical care unit. Within about five minutes, Dr. Massimino came back and said they could see Dawn. Laurie asked if she was in the critical care unit, and Dr. Massimino said no, Dawn had died, and they were led to a viewing room to see her.

According to Timothy Hein, he received a phone call some time between 3:30 and 4:00 p.m., and a nurse told him they had "lost" Dawn. He asked her to clarify if she meant that Dawn had died, and she said yes. Timothy went to the hospital. When he saw his wife Laurie, she told him that Dawn had died. Between 4:30 p.m. and 5:00 p.m., a woman (presumably Schreiber-Torres) came in and said they were preparing a bed for Dawn and that she was alive. The woman said Dawn might have a heartbeat. Timothy did not recall the chaplain. A while later, they were told they could see Dawn, but they did not know until they saw her that she was dead.

Robert Byrnes was Dawn's uncle. He went to the hospital between 3:30 p.m. and 4:00 p.m. and saw nurses around the nurses' station, and one said, "We're sorry." He went into Dawn's room to find Laurie, Carole and James crying hysterically. Outside of the room, Robert spoke to Kathy Mullerin, director of nursing, whom he knew, and the vice president of nursing, Maureen Schneider, whom he did not know. The chaplain also appeared and said, "I don't know why this entire family is so upset. Their daughter is alive and is in critical care." Robert said the family thought Dawn was dead and demanded to know where she was and to be taken to her. Ten minutes later, Mullerin came back and said she was sorry, that Dawn was in radiology and they were moving her to a viewing room. Robert went into the room with his other family members and told them that Dawn had died.

Dawn's father, James Byrnes, echoed that there was much confusion over whether Dawn had actually died, and he said that the chaplain reported that she still had a heartbeat. He testified that "it was just a crazy place" and he needed to take a walk. He learned of his daughter's death when he returned from his walk and Robert asked if he wanted to go view her. Schreiber-Torres recalled telling Laurie about her own husband's death but claimed she was not called to the hospital until 5:30 p.m. to 6:00 p.m., after Dawn had died.

Laurie testified she was emotionally upset because of the death of her sister, and any problems she had after that were as a result of the death of her sister. She testified she had a constant reminder of Dawn because her now-adopted daughter Jordan looked just like Dawn and asked her questions about her all the time. As to the period of confusion as to Dawn's status, she testified that "no one [was] telling us the facts. You know I have one person saying she's dead, one person telling me she's alive, one person telling me they're going to take her to x-ray. No one knew what was going on. No one was there to tell us anything or give us any support." She described "feeling desperate for answers," "the room [was] spinning because you're trying to make sense of the whole situation," and "you just felt like something traumatic happened to you." When asked specifically whether being told different things about Dawn's medical status on the evening of June 26, 1998 caused continued emotional stress after the event, Laurie replied that she had to relive the whole scene every time she drove by the hospital. Also, Laurie obtained Dawn's medical records a few weeks after Dawn's death and "was sick" that she was at the hospital the "whole time [Dawn] was having a code performed on her." Laurie also testified that Dawn was an organ donor and her organs could not be preserved because of the confusion.

Afterwards, Laurie obtained psychological treatment. She testified she joined a grief group and saw a grief counselor. When she was unable to develop a rapport with the grief counselor, she received treatment from a social worker, who was also not treating her to her satisfaction. At the time of trial, she was seeing a psychotherapist. In providing the jury with evidence of what types of therapy she sought and obtained, Laurie did not distinguish counseling to cope with the confusion that transpired on the day Dawn passed, as opposed to coping with the grief attendant with losing her sister.

James was similarly unable to distinguish the emotional impact the confusion caused from the effect of losing his daughter. He testified that the confusion "ruined [his] life" and that he has not "been happy since." James is a veteran medic of the Vietnam War. He compared the situation at the hospital to the fact that the whole war had bothered him, but was made worse when friends of his were grotesquely injured. The confusion at the hospital made his daughter's death worse. Without being any more particular, he stated that he could just "distinguish the difference."

Following plaintiff's case in chief, counsel for the hospital moved for dismissal of the negligent infliction of emotional distress claims. After oral argument, the court dismissed the claims of Dawn's mother as she had not testified as to her distress. The court further dismissed the claims of Dawn's sister and father, finding "as a matter of law there was insufficient evidence to go before the jury that either Laurie or Mr. Byrnes suffered such emotional distress that it affected the security of his person or her person."

On December 20, 2004, following fifteen trial days with testimony presented by seventeen witnesses, the jury returned a verdict by a 6-0 vote that Dr. Farrell and Nurse Lamanna did not deviate from accepted standards of care, and by a 5-l vote that LPN Kelly did not deviate from accepted standards of care. No motion for a new trial was made by plaintiffs, and judgment was entered on behalf of defendants by order of January 3, 2005. This appeal ensued.

III

On appeal, plaintiffs assert the following arguments:

I. THE COURT BELOW ERRED WHEN IT PRECLUDED PLAINTIFFS' EXPERT PERINATOLOGIST, ROBERT J. CARPENTER, JR., M.D. [FROM TESTIFYING].

II. THE TRIAL COURT ERRED WHEN THE COURT MADE IMPROPER, PREJUDICIAL COMMENTS THROUGHOUT THE TRIAL WHICH INFLUENCED THE JURY.

III. THE TRIAL COURT ERRED WHEN IT PERMITTED DEFENSE COUNSEL TO USE LEADING QUESTIONS WHEN QUESTIONING HIS CLIENTS, WHEN PLAINTIFF'S COUNSEL CALLED THE DEFENDANTS IN HIS CASE IN CHIEF, AS ON CROSS.

IV. THE TRIAL COURT ERRED WHEN IT SEVERELY LIMITED TESTIMONY OF PLAINTIFFS' EXPERTS, NURSE MCGRATH AND DR. SOSIS.

V. THE TRIAL COURT ERRED WHEN IT FAILED TO GIVE A SUFFICIENT CURATIVE INSTRUCTION TO THE JURY IN RESPONSE TO DEFENSE ATTORNEY, DONALD GRASSO'S INAPPROPRIATE BEHAVIOR IN FRONT OF THE JURY.

VI. THE TRIAL COURT ERRED WHEN IT PERMITTED COUNSEL FOR DEFENDANT DR. FARRELL TO USE THE NARCOTIC ADMINISTRATION RECORD AT TRIAL.

VII. THE TRIAL COURT ERRED WHEN IT SEVERELY LIMITED ANY POSSIBLE REBUTTAL TESTIMONY BY THE PATHOLOGIST, DR. HYDOW PARK.

VIII. THE TRIAL COURT ERRED WHEN IT DISMISSED THE CLAIMS FOR NEGLIGEN[T] INFLICTION OF EMOTIONAL DISTRESS OF JAMES BYRNES AND LAURIE HEIN.

IX. THE TRIAL COURT ERRED WHEN IT MADE AN INAPPROPRIATE AND ERRONEOUS COMMENT REGARDING THE CAUSE OF DEATH OF THE DECEDENT, DAWN BYRNES, WHEN CHARGING THE JURY.

X. THE TRIAL COURT ERRED WHEN IT REFUSED TO INSTRUCT THE JURY ON AGENCY.

XI. THE TRIAL COURT ERRED WHEN IT REFUSED TO INSTRUCT THE JURY ON ALTERATION OF MEDICAL RECORDS AND FRAUDULENT CONCEALMENT OF MEDICAL RECORDS.

We are not persuaded by any of these arguments.

A.

We first address the pre-trial discovery ruling by Judge O'Brien precluding Dr. Carpenter's testimony (Point I) and the ruling during trial by Judge Oles permitting testimony by Dr. Farrell about his general investigation of "pharmacy records" and conclusion that he did not use of Fentanyl in the D&C procedure (Point VI).

As previously stated, the last case management order required plaintiffs to submit their expert reports by June 8, 2003. Prior to that date, plaintiffs served the expert reports of their economist and Dr. Sosis, and in early July they served Nurse McGrath's report. Although Dr. Carpenter's report was dated March 7, 2003, it was not served on defense counsel until March l5, 2004, about five weeks before the scheduled trial date. The report raised a new theory of liability, namely, that the labor and delivery nurses and the post-partum nurses failed to administer Pitocin as ordered. Dr. Carpenter also opined that there was no deviation from the standard of care provided by any of the obstetricians, including Dr. Massimino.

Defendants moved to bar the report and testimony of Dr. Carpenter as violative of the May 9, 2003 case management order, as prejudicial in view of the impending trial in that it presented a new theory of liability, and as withheld in bad faith in order to facilitate a settlement with Dr. Massimino on June 24, 2003. Plaintiffs' counsel made a variety of arguments, the essence being that Dr. Carpenter's report was a reply to the defense experts' reports and thus, pursuant to the December 3, 2003 case management order, it was only thirty-five days late, which was justified in view of staffing problems in counsel's office. Plaintiffs' counsel argued that the sanction of precluding the expert's testimony was unjust and unreasonable under the circumstances, and would leave plaintiffs in the untenable position of being unable to present obstetrical and gynecological testimony from an expert. Plaintiffs' counsel expressed the impression he had no obligation to send Dr. Carpenter's report to defense counsel when he received it in March 2003, and denied he deliberately held back the report for strategic reasons to enable him to settle plaintiffs' claims against Dr. Massimino.

Judge O'Brien was not convinced this was merely a minor violation of the December 5, 2003 case management order and precluded the report and testimony. He noted Dr. Carpenter's report was dated March 7, 2003, but was not provided to defendants until March 2004, which was in violation of the May 2003 case management order. He stated:

[Y]ou can't keep a report for a year, especially under the circumstances [defense counsel] tells me. And I didn't just fall off a pumpkin truck. You know, you hold back a report. And I'm not saying you did it. People do it all the time. And sometimes your ox gets gored, as it should.

We discern no abuse of discretion by the motion judge in his ruling. Plaintiffs' violation of the May 2003 case management order had the effect of seeking to name a new expert witness and furnish his report after the discovery period.

It is well settled that failure to furnish names of witnesses to be used at trial may result in the sanction of excluding their testimony. Furthermore, under R. 4:23-5(b), the judge at trial may exclude the testimony of any expert whose report is not furnished pursuant to R. 4:17-4(a) and R. 4:17-7. But the application of the sanction is consigned to the sound discretion of the judge, subject only to the rule that the sanction visited upon the party must be just and reasonable. The factors which would "strongly urge" the trial judge, in the exercise of his discretion, to suspend the imposition of sanctions, are (1) the absence of a design to mislead, (2) absence of the element of surprise if the evidence is admitted, and (3) absence or prejudice which would result from the admission of the evidence. This accords with the overriding objective of giving the defaulting party his day in court, with due regard, however, to protecting the opposing party from the effects of surprise or other prejudicial factors.

[Westphal v. Guarino, 163 N.J. Super. 139, 145-46 (App. Div.), aff'd o.b., 78 N.J. 308 (1978) (citations omitted).]

This was clearly not merely a situation where a responsive expert report was served thirty-five days late, and where a less severe sanction, such as an extension of time to permit defendants to respond to Dr. Carpenter's report, was either feasible or warranted. Most obviously, Dr. Carpenter's report was dated eight to nine months before the defense expert's reports were even written, so it strains credulity to argue it could have been prepared in response to those reports. Moreover, it clearly presents a new theory of liability against parties not named in the action in a case that had already been pending for almost four years as of the time the report was served and which was scheduled for trial in five weeks. Most critically, plaintiffs provide no plausible explanation for not having served Dr. Carpenter's report, which was prepared prior to the discovery deadline of June 8, 2003, along with the expert reports of their economist, Dr. Sosis and Nurse McGrath. The specter of plaintiffs strategically withholding in discovery a report from their own expert that opined that Dr. Massimino did not deviate from the accepted standard of care in order to settle with Dr. Massimino was clearly an appropriate consideration for the motion judge in making his ruling.

B.

Plaintiffs argue that the trial court improperly allowed testimony on the document entitled "Narcotic Administration Record" when the document had not been properly produced during pre-trial discovery. We disagree and discern no error in the trial court's even-handed ruling precluding defense's admission of the record and circumscribing Dr. Farrell's testimony regarding that record.

Plaintiffs' expert Dr. Sosis opined that Dr. Farrell acted below the accepted standards of care when he administered excessive amounts of Fentanyl to Dawn during the D&C procedure. During his deposition, plaintiffs' counsel questioned Dr. Farrell as to the finding of Fentanyl above therapeutic levels on the post-mortem toxicology report and whether he administered Fentanyl during the D&C procedure. Dr. Farrell replied he did not believe that he administered Fentanyl to Dawn, but he was not certain. Dr. Farrell responded, "One way is to review the . . . anesthesia record, and it's not present in the anesthesia record." No follow up questions were asked as to other ways to determine whether Fentanyl was administered during the D&C procedure. Subsequent to the deposition, Dr. Farrell requested the hospital's pharmacy records to determine whether he had signed out or dispensed any Fentanyl, a controlled substance that requires documentation, on that day. The document is not a part of the patient's hospital chart.

The Narcotic Administration Record, which indicated the only narcotic Dr. Farrell administered on June 26, 1998 was to another patient earlier in the day, was provided to plaintiffs' counsel on the first day of trial, November 17, 2004. There was no contemporaneous objection, motion to bar the record or any request to conduct additional discovery or depositions.

The issue of Dr. Farrell's Fentanyl use first came up during the cross-examination of plaintiffs' expert witness, Dr. Sosis, when counsel inquired if he knew whether hospital records are kept of a doctor's use of a narcotic drug like Fentanyl. Plaintiffs' counsel immediately objected on the basis he was never supplied with the Narcotic Administration Record during discovery. The judge did permit defense counsel to question Dr. Sosis about a "document" but not the particular Narcotics Administration Record, and he reserved judgment about whether the document could be used in the defense case-in-chief. Dr. Sosis admitted that records of controlled substances were kept and that "there should be" a record of Fentanyl used by Dr. Farrell, but he did not know if there was one.

During a Rule 104 hearing in response to plaintiffs' counsel's objection to Dr. Farrell's reference to or admission of the record, Dr. Farrell explained that anesthesiologists are given kits at the beginning of the day, and that at the end of the day they hand in the kits and the missing drugs are recorded. He further explained the records were "off-site," he had to make several requests, it took "a long time" to get the document and he was only provided the record "fairly recently" prior to his trial testimony.

The judge held the Narcotics Administration Record should have been disclosed in discovery, and because it was not and because the custodian of the record was not present to explain it, Dr. Farrell was prohibited from admitting it into evidence as corroboration. However, Farrell could testify that after reviewing a pharmacy record, he believed he did not administer Fentanyl, and that is what he testified to.

We are not persuaded by plaintiffs' argument that the distinction between admission of the actual document into evidence and allowing Dr. Farrell to testify to the document was a distinction without a difference and that the ruling rewarded the defense for its legal "maneuvering."

The discovery rules "were designed to eliminate, as far as possible, concealment and surprise in the trial of law suits to the end that judgments therein be rested upon the real merits of the causes and not upon the skill and maneuvering of counsel." Wymbs v. Twp. of Wayne, 163 N.J. 523, 543 (2000). "The application of sanctions is consigned to the sound discretion of the court, subject only to the rule that the sanction visited upon the party must be just and reasonable." Brown v. Mortimer, 100 N.J. Super. 395, 401 (App. Div. 1968). There is nothing in the record to suggest bad faith or legal maneuvering by defense counsel, albeit there was a discovery violation in not having provided the document prior to the trial date. The court's handling of the technical violation of pre-trial discovery, however, was appropriate and non-prejudicial to either party. The court barred the defense introduction of corroborating evidence since it had not been supplied and allowed Dr. Farrell to testify within circumscribed boundaries on what actions he took on this issue. As an extra precaution, the trial court asked the questions itself rather than defense counsel.

We also note that plaintiffs never requested additional time upon their receipt of the Narcotics Administration Record to conduct further discovery. Furthermore, plaintiffs' expert Dr. Sosis did not testify until fifteen days into the trial, which gave plaintiffs time to advise Dr. Sosis of the Narcotic Administration Record that purported to indicate that Dr. Farrell did not administer Fentanyl to Dawn and allow him to take the record into account in drawing his conclusions. Moreover, Dr. Farrell did not testify until mid-December, which gave plaintiffs additional time to prepare for his cross-examination with regard to the Fentanyl issue. We discern no prejudice to the plaintiffs in these circumstances.

C.

In Point II plaintiffs contend the judge interfered in the trial, made inappropriate facial expressions and made a multitude of improper and prejudicial comments throughout the trial. According to plaintiffs "[a]ny one of the series of biased comments made by the Court improperly influenced this jury," and the cumulative effect of the judge's biased comments "sent a strong message to the jury, to Plaintiffs' detriment, that the Court was advocating for the Defendants." Defendants counter that the comments complained of by plaintiffs were for the purpose of clarification or trial management and the rulings were within the discretionary power of the court, and their perception was that the judge gave plaintiffs' counsel "unusual leeway" in questioning witnesses and that he was more than accommodating in entertaining plaintiffs' repetitive objections and numerous motions for mistrial.

Plaintiffs contend the court made several improper comments during the questioning of Dr. Massimino, which undermined their counsel's examination, highlighted an issue potentially helpful to the defense and minimized their counsel's objection on cross-examination. Also, plaintiffs argue that the court improperly interrupted an exchange between their counsel and the doctor and improperly limited Dr. Massimino's answers. They also contend the court made inappropriate comments which "demean[ed] plaintiff's counsel and analogize[d] him to an unruly child," made a comment during the testimony of Shreiber-Torres that made it appear plaintiffs' counsel was mischaracterizing her testimony and made a statement during Dr. Farrell's testimony that raised doubts as to the accuracy of plaintiffs' counsel's recollection of prior testimony.

In Cestero v. Ferrara, 110 N.J. Super. 264, 273 (App. Div. 1970), aff'd, 57 N.J. 497 (1971) we made the follow observations with respect to the judge's control of a trial:

It has long been held that a trial judge may comment on the evidence, and it is frequently his duty to do so, provided it is to assist and not control the jury's findings. The control of examination, both direct and cross, resides in him, to the end that the proofs may be kept within reasonable bounds. His discretion in this respect is a broad one, and we will not interfere with its exercise absent a clear abuse of that discretion.

In a lengthy trial, isolated comments and rulings can always be taken out of context. This was a fifteen-day trial with testimony presented by seventeen witnesses in which multiple counsel zealously advocated their clients' positions.

Based on our review of the entire record, we are satisfied that Judge Oles conducted the trial in a fair and even-handed manner, and remained impartial, detached, and neither took sides nor appeared to take sides in the dispute. State v. Swint, 328 N.J. Super. 236, 260 (App. Div.), certif. denied, 165 N.J. 492 (2000). The trial judge properly exercised his discretion to keep the testimony within reasonable bounds and to control the trial and neither impeded nor interfered with plaintiffs' case, nor in any way showed bias against plaintiffs.

D.

We turn now to the challenge by Dawn's sister and father to the trial judge's dismissal of their negligent infliction of emotional distress claims stemming from the alleged miscommunication of Dawn's status to them, set forth in Point XIII of their brief. Although not raised as a cross-appeal, defendants hospital and nurses maintain the claims should have been dismissed prior to trial because they were not pled, even under the most liberal rules of notice pleading, in plaintiffs' complaint, but at any rate, were properly dismissed before submission to the jury.

As previously stated, when plaintiffs' proofs were complete, counsel for the hospital moved for dismissal of the negligent infliction of emotional distress claims. He argued an expert was necessary to distinguish between the grief felt from the death of a loved one and from the alleged miscommunication, otherwise the jury would have no basis upon which to segregate the aspects of the latter claim, which is the only one that would be compensable. More importantly, he contended, Laurie and James' damage proofs were insufficient to establish severe emotional distress sufficient to recover under the case law, emphasizing that Taylor v. Metzger, 152 N.J. 490 (1998) and Turner v. Wong, 363 N.J. Super. 186 (App. Div. 2003) defined the requisite condition in terms of one generally recognized and diagnosed by trained professionals. Plaintiffs' counsel cited the court's holdings that expert testimony was not necessary to establish the existence of severe emotional distress in an aggravated sexual assault prosecution and argued the case should get to the jury under Strachan v. John F. Kennedy Mem. Hosp., 109 N.J. 523 (1988) (recognizing a claim by parents of direct emotional distress for failure of a hospital to release their son's corpse after he was brain dead and holding that plaintiffs need not demonstrate physical manifestations of their emotional distress).

The judge indicated a belief the case law provided for a direct cause of action for the close family members against the hospital stemming from a miscommunication as to whether a patient was alive or not. With respect to his leniency in denying defendants' in limine motion to dismiss, he stated:

What is of concern to the Court, though, is that the pleadings are not very specific with respect to this particular claim, and I have previously ruled that because there was a reference to this claim in the deposition testimony [of Carole], that it would go forward. And I think I'm correct on that and I think it should go forward. So I think the cause of action has been stated, albeit very loosely, but that it has been presented.

Judge Oles then discussed the case law regarding emotional distress and found Laurie and James had to prove the emotional distress was so severe it resulted in physical manifestations or destroyed their basic emotional security. He stated:

We do not have any specific case in our State that is exactly on point. There are various cases that deal with direct emotional distress in connection with the Law Against Discrimination or LAD cases. [The hospital's counsel] has cited to me the case of Turner versus Wong . . . that dealt with racial comments made in a [LAD] case. The court held that, "Emotional distress based on either negligent or intentional infliction of emotional distress is compensable but only if it is severe and substantial, not merely transitory, but rather has a discernable effect on the plaintiff's ability to function normally either physically or psychologically on a daily basis." [363 N.J. Super. at 202].

It went on further to say that, "Without corroborating medical proof or evidence of physical or psychological symptoms there exists no genuine issue of material fact as to the severity or the substantiality of the emotional distress."

In Taylor versus Metzger . . . this case dealt with a single derogatory racial comment and the question for the Court is whether that utterance also constituted a tort of intentional infliction of emotional distress. The Court went on to talk about very little distinction between negligent infliction of emotional distress and intentional infliction of emotional distress. In that particular case the Court held that, "A cause of action for infliction of emotional distress requires that the emotional distress suffered by the plaintiff must be so severe that no reasonable person can be expected to endure it. Severe emotional distress means any type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so." [152 N.J. at 514-15].

The trial judge analogized the present case to Carey v. Lovett, 132 N.J. 44 (1993), where the Court permitted direct recovery to parents for their emotional distress caused by medical malpractice resulting in the premature birth and death of their daughter. He noted the Court required the mother to prove she suffered emotional distress so severe that it resulted in "physical manifestations" or "destroyed the very basic emotional security of [her] person" and the father had to show a little more. Judge Oles continued:

Now, my observation is this. If a mother who has been faced with the premature birth of their child or the premature death of her child must prove that the emotional distress is so severe that it results in physical manifestations or that it destroys her basic emotional security, there should not be a lesser standard for a sister or a father who has been given miscommunications about the status of their daughter or their sister. It would seem to me that in the case before me the standard should be equal to that of the Carey case or perhaps even stronger.

Accordingly, he found, "as a matter of law that there was insufficient evidence to go before the jury that either Laurie or Mr. Byrnes suffered such emotional distress that it affected the security of his person or her person."

The trial judge further explained:

Now, I don't diminish for one instant the concern and the emotional distress that they had at the loss of their sister or the loss of his daughter. There's nothing worse than a father or a mother burying a child . . . There is such an emotional distress with that, that it is beyond comprehension of anyone. But that is not to say that is equal to that of miscommunication.

And in this particular case Laurie testified that she was upset, that it affected her, and that she was beside herself during that period of time. But she also recognized in her direct and cross-examination testimony that as a result of the death of her sister, that [she] was preoccupied in her mind from that point forward and that there was really no distinction between the two events in connection with her emotional distress.

Mr. Byrnes himself testified that this particular event will last forever in his mind, that is, the miscommunication. But that doesn't equate to the security of his well being either physically or psychologically.

There has been no testimony from anyone with respect to professional advice sought in the treatment of these particular individuals, and I think that that's a requirement under the law.

Defendants are correct that plaintiffs did not plead a cause of action based on the alleged miscommunication. Although the judge would have been justified in dismissing the claim on the basis that the miscommunication was not addressed in the pleadings or articulated with specificity until the time of trial, it was within his discretion to deny defendants' in limine motion based on Laurie's deposition.

To establish a direct claim for intentional infliction of emotional distress, a plaintiff must establish intentional and outrageous conduct by a defendant, proximate cause, and emotional distress "so severe that no reasonable [person] could be expected to endure it." Buckley v. Trenton Saving Fund Soc'y, 111 N.J. 355, 366 (1988). Plaintiffs' reliance on Strachan begs the question. The focus was not on whether plaintiffs had a direct cause of action against the hospital for alleged miscommunication. The trial court accepted that they did. Rather, the issue was whether plaintiffs' proofs established a prima facie case sufficient to satisfy the element of damages for compensability under the case law. The court held plaintiffs did not. We agree.

Even assuming a legal and factual basis for the claim, plaintiffs still needed to show the tortious conduct caused genuine and substantial emotional distress or mental harm "sufficiently palpable, severe, or enduring to justify the imposition of liability and the award of compensatory damages." Decker v. The Princeton Packet, Inc., 116 N.J. 418, 431 (1989) (affirming dismissal of claim for emotional distress by person whose death was falsely reported in the newspaper). The trial judge appropriately made that determination as a matter of law. The "genuineness and severity of emotional distress can present threshold questions of law." Id. at 430. The court decides whether as a matter of law, emotional distress can be found, and the jury decides whether it has in fact been proved. Ibid. (citing Buckley, supra, 111 N.J. at 367). In Buckley, the Court determined as a matter of law that headaches, aggravation, embarrassment and loss of sleep could not constitute severe mental distress sufficient to impose liability. Id. at 368.

Though it appears the judge dismissed the emotional distress claim, in part, because of a lack of an expert, which we are not convinced was necessarily a correct ruling, we are satisfied the dismissal was appropriate and in accordance with our recognized case law. Regardless of the presence or absence of expert testimony, Laurie and James were unable to establish they suffered emotional distress resulting from the alleged miscommunication about Dawn's status sufficiently substantial to meet the Buckley/Decker/Taylor standard.

More particularly, their testimony neither differentiated between the grief and other symptoms felt over the uncompensable tragic loss of their loved one and those symptoms attributable to the alleged misrepresentation. Nor was their emotional distress "sufficiently palpable, severe, or enduring" to constitute a compensable injury.

For example, Laurie testified the effect of the miscommunication was "very upsetting" and she felt the room "spinning." Without making light of that clearly disconcerting symptom, it was only temporary. Her general comment about "reliving" the situation in the hospital whenever she drove by it was non-specific as to the cause or her symptoms, and did not make these injuries more enduring. Additionally, although Laurie attended grief counseling, she attributed that to her sister's death and not to the miscommunication. James testified generally that the miscommunication "ruined [his] life," he had not "been happy since," and it was an event that he "just can't get out of [his] head," but he provided no further specifics. Neither plaintiff testified or provided any evidence of psychological symptoms, let alone serious psychological sequelae, or any psychological or psychiatric assistance attributable to the miscommunication. There was not even evidence that either party consulted with a family physician about problems relating to this claim.

The trial judge was sensitive to the parties' overwhelming grief over the loss of a sister and daughter in the prime of her life who had just left behind a newborn daughter. However, having concluded their claim for emotional distress for the alleged miscommunication of Dawn's status was insufficient as a matter of law, he properly dismissed this cause of action prior to submission to the jury.

We decline to address the remaining arguments raised by plaintiffs, finding them to have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). These challenges pertain to evidential rulings by the court, the choice and adequacy of jury instructions and the limitation of rebuttal testimony. All of these areas are within the wide discretionary power of the trial judge and do not result in reversal unless there was a "clear error of judgment" that resulted in a "manifest denial of justice." We find no basis to second-guess the trial judge with regard to these matters. State v. Morton, 155 N.J. 383, 454 (1998); see also State v. Campisi, 42 N.J. Super. 138, 147 (App. Div. l956) (a trial judge's ruling on whether an expert is qualified is "conclusive unless clearly shown to be erroneous as a matter of law"), rev'd on other grounds, 23 N.J. 513 (1957); Cestero, supra, 110 N.J. Super. at 273 (control of both direct and cross examination rests in the judge, and the judge's discretion in that respect is broad), aff'd, 57 N.J. 497 (1971); State v. Sturdivant, 31 N.J. 165, 178 (1959) (a trial judge is vested with considerable discretion in determining the admissibility of rebuttal testimony, and his decision will not be disturbed "merely because of some disagreement with it"), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960); Mehlman v. Mobil Oil Corp., 153 N.J. 163, 194 (1998) (a verdict must stand unless, on reading the charge as a whole, the jury was misled or inadequately informed); State v. Winter, 96 N.J. 640, 647 (1984) (when weighing the effectiveness of curative instructions, a reviewing court should give equal deference to the determination of a trial court).

Affirmed.

 

An amended complaint was later filed to correct the spelling of one of the nurse's names.

Dr. Farrell's brief in support of his motion is not contained in the record; however, based on plaintiff's brief in opposition, it appears the dismissal of the emotional distress claim of Dawn's sister, mother and father against the anesthesiologist was based on their failure to witness the victim when the injury was inflicted or immediately thereafter, i.e. witness the physician's malpractice, observe the effect of the malpractice on the patient, and immediately connect the malpractice with the injury, Frame v. Kothari, 115 N.J. 638 (1989).

No appeal has been taken from that ruling.

This theory did not appear to be supported by the record.

Dr. Ferrari's report is dated November 3, 2003 and Dr. Quartell's report is dated December 1, 2003.

See N.J.S.A. 2A:31-1 to 6 (Wrongful Death Statute).

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A-2418-04T2

August 9, 2006