RICKY PENNISI et al. v. YEESEEL PAGAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2642-04T22642-04T2

RICKY PENNISI and

ALBA PENNISI,

Plaintiffs-Appellants,

v.

YEESEEL PAGAN,

Defendant,

v.

PENN NATIONAL INSURANCE

COMPANY,

Defendant-Respondent.

________________________________________________________________

 

Argued February 8, 2006 - Decided June 20, 2006

Before Judges Parker and Grall.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County, Docket

No. L-7369-02.

Kenneth Cohen argued the cause for appellants

(Jacoby & Meyers, attorneys; Frances M. Bova,

of counsel and on the brief).

Rocco T. Casale argued the cause for respondent

(Maloof, Lebowitz, Connahan & Oleske, attorneys;

Mr. Casale, on the brief).

PER CURIAM

Plaintiffs Ricky Pennisi and Alba Pennisi appeal from an order entered on January 7, 2005 denying their motion for a new trial after a jury found no cause for action against plaintiff's PIP carrier, Penn National Insurance Company (Penn National).

Plaintiff claimed that he developed kidney disease from taking Motrin for pain relief after he was involved in an automobile accident with defendant Yeeseel Pagan on September 23, 2001. Penn National refused to cover treatment for the kidney disease. Plaintiff and Penn National stipulated to liability prior to trial and the issue for the jury was whether plaintiff's kidney disease was proximately caused by the auto accident.

Plaintiff's expert, Michael Gutkin, M.D., diagnosed plaintiff as suffering from Henoch-Schoenlein Purpura (HSP). He testified in a de bene esse deposition, consistent with his reports dated May 30, 2002 and September 2, 2003, that plaintiff's kidney disease was caused by an adverse reaction to Motrin, which was prescribed for pain relief after the accident. The videotape of Dr. Gutkin's testimony was shown at trial. Dr. Gutkin opined that "[w]hile [plaintiff's] kidney function appears to have stabilized, it is likely that there will be a progressive slow decline in renal function to the point where he requires either transplantation or dialysis." In his testimony, Dr. Gutkin made reference to articles, textbooks and other treatises upon which he relied in forming his opinion. At his deposition, defendant's attorney objected to use of those treatises because they were not referenced in Dr. Gutkin's reports nor were they provided in plaintiff's answers to interrogatories.

Defendant's expert, Frank J. Casella, D.O., disagreed with Dr. Gutkin's diagnosis of HSP. He did not, however, dispute that plaintiff had "significant renal damage" and that "there was a good possibility that the Motrin could have caused this." Indeed, Dr. Casella testified "with a reasonable degree of medical certainty or probability that a NSAID [such as Motrin] was involved." In his opinion, however, Motrin could not have caused HSP but could have caused hypersensitivity vasculitis (HSV), which is typically due to medication. "It's like an allergic reaction . . . and . . . shares some of the characteristics [of] HSP, but [they] are two distinct[,] different disorders."

Dr. Casella raised the question of whether plaintiff had preexisting renal disease which would have made him "more susceptible to any potentially renal-injuring agent." Dr. Casella was critical of Dr. Gutkin's diagnosis and treatment of plaintiff without having performed a kidney biopsy. According to Dr. Casella, "[i]t is imperative that an accurate diagnosis be made so that appropriate therapy can be rendered. Also, there are standards of care that apply when treating any patient with chronic kidney disease, irregardless [sic] of its cause. Those standards were not adhered to in this patient." Dr. Casella further indicated that plaintiff inhibited his own recovery "[b]ecause of his fixation on the accident and attributing his medical problem to Motrin."

Dr. Casella further indicated that after he examined plaintiff, he found that plaintiff "was experiencing chest pain typical of angina;" "[h]is blood pressure readings were elevated"; he exhibited certain abnormalities, including "abnormal skin findings, particularly on his face;" "some darkening of the proximal portion of his nail bed;" and a bruit (an abnormal pulse "characteristic of atherosclerosis, hardening of the arteries" and in this case indicative of kidney disease). In Dr. Casella's opinion, plaintiff was "likely hypertensive . . . . which is a risk factor for coronary disease as is kidney disease."

After the jury verdict, plaintiff moved for a new trial based upon "evidential trial errors." In denying the motion, the trial judge noted that Dr. Casella's "testimony appeared to the court to be extremely credible" and concluded that "[c]learly, there was no trial error and the verdict was not against the weight of the evidence."

In this appeal, plaintiff argues:

POINT ONE

THE TRIAL COURT ERRED IN DENYING PLAINTIFFS' MOTION FOR A NEW TRIAL, SINCE THE JURY VERDICT DENYING DEFENDANT'S LIABILITY WAS A MISCARRIAGE OF JUSTICE UNDER THE LAW AND AGAINST THE WEIGHT OF THE EVIDENCE

A. The trial Judge erred in excluding plaintiff's family history testimony, in permitting defense expert, Dr. Casella to testify regarding the correlation between cardiac and renal disease, and in permitting defense counsel's mitigation of damages argument in summation, as they confused and mislead the jury, and therefore constitute reversible error.

B. The trial Court in permitting the inclusion of irrelevant, biased and unsupported testimony by Dr. Casella, and prejudicial, unfounded remarks about plaintiff's finances by defense counsel in summation, producing undue bias and prejudice toward the plaintiff, which constitute reversible error.

POINT TWO

THE TRIAL COURT ERRED IN PRECLUDING PLAINTIFFS' MEDICAL EXPERT'S TESTIMONY REGARDING LITERATURE THAT HE RELIED UPON, AS THERE WAS NO EVIDENCE OF ANY DESIGN TO MISLEAD OR SURPRISE THE DEFENDANT AND DEFENDANT WAS NOT PREJUDICED YET THE EXCLUSIONS ADVERSELY AFFECTED DR. GUTKIN'S CREDIBILITY AND PREJUDICED PLAINTIFFS' CASE, CONSTITUTING REVERSIBLE ERROR

I

A motion for a new trial "shall" be granted "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). In reviewing the grant or denial of a motion for a new trial, we defer to the trial court with respect to "intangibles" not transmitted by the record, such as credibility, demeanor, and "feel of the case," but otherwise make our own independent judgment of whether a miscarriage of justice occurred. Carrino v. Novotny, 78 N.J. 355, 361 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969).

The "multiple and prejudicial trial errors" alleged by plaintiff are: (1) excluding plaintiff's testimony relating to his family history; (2) permitting Dr. Casella to testify to the correlation between cardiac and kidney disease; (3) permitting defense counsel to argue mitigation of damages in summation; (4) permitting the inclusion of irrelevant, biased and unsupported testimony from Dr. Casella; and (5) prejudicial, unfounded remarks about plaintiff's finances by defense counsel in summation.

During direct examination, plaintiff testified that his father died at age forty-eight from a heart attack. Plaintiff further testified that his father was a diabetic and a chain smoker. Defense counsel objected to plaintiff's testimony regarding family history and plaintiff argued that the question was relevant based upon a need to counterbalance the anticipated testimony of Dr. Casella, whose report referred to plaintiff's "strong family history of premature lethal cardiovascular disease." The trial judge sustained the objection after defense counsel assured the judge that he would not address that issue in Dr. Casella's testimony. Indeed, when Dr. Casella mentioned plaintiff's family history during his direct examination, defense counsel interrupted and said, "Well, we're not going to get into that, doctor." Moreover, plaintiff's counsel cross-examined Dr. Casella on the significance of family history in making a diagnosis.

Plaintiff now argues that in precluding his testimony relating to the family history, the jury was left with the impression that he was predisposed to kidney disease because of his father's cardiac history. He maintains that his family history was necessary "to clarify for the jury that [his] renal disease was unrelated to his family history."

We are not persuaded that plaintiff's brief testimony regarding his father's death at age forty-eight from a heart attack had the capacity to mislead the jury when plaintiff further testified that his father was a chain smoker and suffered from diabetes.

Defendant next argues that the jury was misled by Dr. Casella's testimony regarding the correlation between cardiac and renal disease. Again, we disagree. Dr. Casella's testimony was based upon his examination of plaintiff and his disagreement with Dr. Gutkin's diagnosis that plaintiff suffered from HSP.

Plaintiff contends that Dr. Casella's testimony "confused the jury as to what caused [his] HSP." In his testimony, Dr. Casella specifically disputed that plaintiff even had HSP and stated that HSP is an "idiopathic" disease, meaning "there's no known cause . . . . The ideology is unknown. There's no proven cause for the disorder." Dr. Casella, therefore, could not have confused the jury as to the cause of plaintiff's HSP. We find no error in the admission of Dr. Casella's testimony on that issue.

Plaintiff next argues that the trial court erred in permitting defense counsel to argue in summation that plaintiff failed to mitigate his own damages by continuing to take large doses of Motrin beyond the time specified in his prescription. Plaintiff's objection to the mitigation remark was overruled with the judge stating:

Counsel, I believe that just as we are submitting to the jury the issue of [plaintiff's] failure to follow the advice of two doctors, I think as an element of mitigation of damages . . . if the jury gets past the first issue, the main issue, which is can Motrin cause this condition, or did Motrin cause this condition; that's the issue. If the jury decides yes, then they can go to the question of mitigation of damages.

Defense counsel then proceeded with his summation, stating that plaintiff had received a prescription for 2,400 milligrams of Motrin for ten days but took 1,600 to 2,400 milligrams per day for more than 100 days beyond the prescribed time. Defense counsel argued to the jury:

When you don't have a prescription, you don't take the prescriptive dose[s], not without seeing a doctor, not for almost over 100 days, about three and a half to four months.

Plaintiff maintains that defendant's argument on mitigation was presented without supporting expert testimony and "suggested a nexus between the amount of Motrin that plaintiff ingested and the development of HSP." We find no merit in this argument. First, plaintiff himself testified as to the amounts of Motrin he took beyond the prescription period. Second, Dr. Casella disputed that plaintiff had HSP and testified that HSP had no known cause. Third, Dr. Casella testified that plaintiff's symptoms were indicative of an allergic-type reaction to Motrin. Fourth, on the jury verdict sheet, the question relating to mitigation of damages was number three; the jury reached its verdict, however, on question one: "Has plaintiff [] sustained an injury to his kidneys that was proximately caused by the motor vehicle accident on September 23, 2001?" In other words, the jury never reached the question on mitigation of damages and was unlikely to have been misled by defense counsel's remarks in summation. These factors support defense counsel's argument in summation. Colucci v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999), certif. denied, 163 N.J. 395 (2000) (holding that counsel is afforded "broad latitude" in crafting a summation so long as it is "confined to the facts shown or reasonably suggested by the evidence introduced during the course of the trial").

Plaintiff next argues that the trial court erred in allowing Dr. Casella to give "irrelevant, biased and unsupported testimony." Specifically, plaintiff maintains that "Dr. Casella was permitted to testify that [plaintiff] was exaggerating his symptoms and focusing on the litigation. Dr. Casella even testified that 'other patients are known as malingerers, and some do it for some other secondary gain.'" Plaintiff contends that this testimony was beyond the doctor's expertise. After plaintiff's counsel objected at trial, however, Dr. Casella testified:

We are trained to be aware that . . . nowadays, especially where litigation is as common as it is, to be aware that . . . some patients might be attempting to strengthen a particular - their particular case in litigation and so may over-dramatize certain symptoms that they might be having.

Defense counsel then asked: "Okay. You weren't certain here that that's the case?" Dr. Casella responded, "No." An expert may render an opinion based upon training and experience. Rosenberg v. Tavorath, 352 N.J. Super. 385, 401-04 (App. Div. 2002) (holding a physician's opinion was admissible when based on twenty years experience in the field). We find no merit in this argument.

Defendant next argues that the trial judge erred in permitting defense counsel to make "unfounded remarks about plaintiff's finances" in summation. During his de bene esse deposition, Dr. Gutkin made multiple references to plaintiff's inability to afford further medical testing and examination by another physician. In closing arguments, defense counsel argued:

One last comment was you heard mention a few times about [plaintiff] not getting testing of things because of . . . a lack of funds or whatever. I'll just throw out to you, I'm not going to go into any great detail, but the facts came in this way, that he was a charity case, but I just want you to consider that he's a homeowner with his wife in North Caldwell.

Plaintiff's objection was overruled and defense counsel continued:

He's a homeowner in North Caldwell, New Jersey, and he's not making any lost wage claim here, and that's all I have to say on that. Just weigh that against what you heard about the charity case.

Given Dr. Gutkin's testimony, we find nothing unduly prejudicial in defense counsel's remarks during summation. Colucci, supra, 326 N.J. Super. at 177.

II

Finally, plaintiff argues that the trial court erred in precluding Dr. Gutkin's testimony regarding literature he relied upon in his testimony. None of the texts to which Dr. Gutkin referred were included in his reports or in plaintiff's responses to relevant interrogatories. Defendant argued that its ability to effectively cross-examine Dr. Gutkin on the texts was prejudiced. In granting defendant's pre-trial motion to preclude the references from the videotaped testimony, the trial judge stated:

Clearly, there's prejudice here. Clearly, without this, Dr. Gutkin stands alone; in essence, now the jury hears not only from Dr. Gutkin but hears from other experts . . . . [T]here's a very powerful difference in that testimony with literature as opposed to not with the literature. Defense certainly had the right and the need in properly preparing to analyze, have it reviewed by their expert. For that reason, I'm barring that portion of his testimony.

Because the literature was not identified prior to Dr. Gutkin's de bene esse testimony, defense counsel was precluded from securing the referenced literature to cross-examine the doctor on it. The references were properly excluded from the videotaped testimony presented to the jury. We find no abuse of discretion in the trial court's determination on this issue. Terrell v. Schweitzer-Mauduit Int'l, 352 N.J. Super. 109, 115 (App. Div. 2002) (holding that we must "defer to a trial court's disposition of discovery matters unless the trial court has misapplied its discretion").

III

 
In summary, we find that plaintiff has not "clearly and convincingly" demonstrated "that there was a miscarriage of justice under the law." R. 4:49-1(a). Neither has he demonstrated that the trial judge abused his discretion in precluding Dr. Gutkin's references to treatises not previously referenced or provided to defendant. Terrell, supra, 352 N.J. Super. at 115.

Affirmed.

Plaintiff Alba Pennisi is a party to this action based on her per quod claim. References to plaintiff in the singular are to Ricky Pennisi.

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A-2642-04T2

June 20, 2006