MARILYN K. KAPALKA v. NICHOLAS GIORGIANNI, M.D., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-7234-023812-04T2

MARILYN K. KAPALKA,

Plaintiff-Appellant,

v.

NICHOLAS GIORGIANNI, M.D.,

Defendant-Respondent,

and

MEDFORD PODIATRY ASSOCIATES t/a

THE FOOT & ANKLE CENTER, LESLIE A.

HESS, DPM, JACK M. BONDI, STEVEN N.

FINE, DPM,

Defendants.

______________________________________

 

Submitted September 11, 2006 - Decided September 25, 2006

Before Judges Lintner and C.L. Miniman.

On appeal from the Superior Court of

New Jersey, Law Division, Camden County,

L-7234-02.

Mark J. Molz, attorney for appellant (Stephen Cristal, on the brief).

Stahl & DeLaurentis, attorneys for respondents (Sharon K. Galpern, on the brief).

PER CURIAM

Plaintiff, Marilyn Kapalka, appeals from the denial of her motion for judgment on liability notwithstanding the verdict (NOV) or, alternatively, a new trial, following an adverse jury verdict finding no cause for action in a medical malpractice action against defendant, Dr. Nicholas Giorgianni. On appeal, plaintiff contends the jury verdict was against the weight of the evidence, she was entitled to judgment as a matter of law, and the judge erred in denying her motion for mistrial. Plaintiff's contentions are without merit; accordingly, we affirm.

We need not recount the testimony in detail. On January 4, 2001, defendant performed an in-office surgical procedure to remove a corn on the fourth toe of plaintiff's right foot. In preparation for the surgery, defendant anesthetized plaintiff's toe by injecting a local anesthetic, namely, three cubic centimeters of one-percent Lidocaine. Plaintiff testified that, with the exception of her heel, her foot was rendered numb. After returning home, plaintiff fell while descending the stairs, resulting in injuries to her spine. She claimed that she lost her balance because her foot was numb. According to plaintiff, she was not informed to stay off her feet or warned not to use the stairs.

Plaintiff's expert witness, Dr. Stephen Weissman, a board certified foot surgeon, testified that normally the use of a toe block does not numb the foot but "just the toe . . . and a little bit behind the toe." He indicated, however, that the foot could be rendered numb depending upon the placement of the injection, and if the major part of the foot were numb, then plaintiff should have been warned not to go up or down stairs. Although Weissman testified that he could not tell from his review of the records whether a routine toe block was applied or something greater was used, he acknowledged that, from his initial review of defendant's deposition, defendant indicated a toe block was used. Admitting that he was "not Solomon," Weissman acknowledged that, according to defendant's version of the injection procedure, only plaintiff's toe should have been numb, while plaintiff claimed most of her foot was numb.

Weissman testified that the standard of care required defendant to advise plaintiff not to use the stairs because she could either bump the toe that was swollen from the surgery or she may be unable to feel her foot if it was rendered numb. He opined that if plaintiff's foot was mostly numb, as claimed by her, then the failure to provide plaintiff with instructions not to use the stairs was the proximate cause of her accident.

Although defendant could not recall whether he specifically discussed the stairs with plaintiff, he testified that he usually tells patients to take it easy, not to bump the toe while going up or down stairs. Defendant's expert, Dr. Michael Downey, also board certified in foot surgery, reviewed defendant's records and testified that the Lidocaine used was the standard amount used to block a toe. Downey's review of the record also indicated that after the operation defendant used Marcaine, an anesthetic that has a long duration, to provide pain relief by numbing the toe. He opined that the use of these toe blocks would not result in the foot being rendered numb such that plaintiff would miss a step causing a fall. He testified that patients are usually told to avoid using stairs because following surgery the patient is wearing a surgical shoe that has an open toe and there is a danger when ascending stairs that in swinging the foot the toe will strike the stair. He explained that, when going up stairs, the front of the foot hits first and then your heel. He pointed out, however, that when going down stairs, the heel hits first and the front of the foot follows. Thus, he found plaintiff's version that she could not feel her foot while descending the stairs immediately before her fall inconsistent because her heel was not numb.

Against this factual backdrop, plaintiff claims that she should have received a new trial or a judgment as a matter of law at the end of the case because defendant admitted that he did not give post-operative instructions not to use the stairs. She argues that the jury's finding of no deviation "flies in the face of the undisputed facts."

Plaintiff's contentions are devoid of merit. The applicable principles are well settled. Under R. 4:49-1(a), a party is entitled to a new trial "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:40-2 permits a party to move for Judgment NOV where a motion for directed verdict is denied, when made in accordance with R. 4:40-1. Essentially, the same standards apply in reviewing a trial judge's findings on a motion for new trial, regardless of whether alternative relief is sought. R. 2:10-1; see also Dolson v. Anastasia, 55 N.J. 2, 6 (1969). We are obliged to give deference to the trial court's "feel of the case" as to matters such as the demeanor or credibility of the witnesses. Carrino v. Novotny, 78 N.J. 355, 361 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 600-01 (1977).

We do not have the benefit of the trial judge's conclusions in denying plaintiff's motion for judgment NOV or new trial. Nonetheless, plaintiff essentially asks us to consider only the evidence supporting her version of what occurred, thus totally disregarding the contrary evidence presented. Our review of the entire record convinces us that there was ample evidence to support the result reached by the jury. The evidence supported the conclusion that plaintiff's foot was not rendered substantially numb as a result of the pre- and post-operative anesthesia and, thus, a finding that her fall was not proximately caused by the failure to warn her not to use stairs for a period of time after the surgery. Moreover, there was sufficient evidence placing into question plaintiff's version of how the fall occurred. The role of a judge in determining whether a verdict constitutes a miscarriage of justice involves "'canvass[ing] the record, not to balance the persuasiveness of the evidence on one side as against the other, but to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict . . . .'" Dolson, supra, 55 N.J. at 6 (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962)). In that context, it cannot fairly be said that the evidence was so one-sided as to compel the conclusion that the verdict was clearly erroneous. The verdict in favor of defendant did not suffer from evidential insufficiency, but rather was reasonable in light of the evidence presented.

Next, plaintiff asserts that the judge erred in denying her motion for mistrial. During direct examination on his qualifications, Weissman indicated that he continued to participate in private practice until 1999, when he became disabled as a result of a shoulder injury. Thereafter, he eventually became involved in a medically related business dealing with shoes for individuals suffering from diabetes. On cross-examination, defense counsel asked Weissman whether one of the businesses he was involved in after becoming disabled was called The Podiatry Practice Plan. After Weissman acknowledged his involvement in The Podiatry Practice Plan in the years 2001 and 2002, defendant's counsel asked if the company marketed the business on the internet as providing discount podiatric care plans to individuals or entities. Weissman responded affirmatively. Defense counsel then asked:

And as part of that advertising program, your company put out that, "You can be certain that every physician in our network is a qualified specialist in foot and ankle care and surgery," correct?

Plaintiff's counsel objected, and at sidebar asserted that the information was not relevant to the doctor's qualifications. Defense counsel continued, eventually asking Weissman whether his company put out advertising that every physician in the company network was a qualified specialist in foot and ankle care and surgery. After Weissman responded that he did not remember, defense counsel approached with a purported copy of an internet advertisement. Plaintiff's counsel again objected, claiming the document was not provided in discovery or authenticated. The jury was excused and, following extensive argument plaintiff's counsel asked the judge to

instruct the jury that the cross-examination of [Weissman by defense counsel] with regard [t]o his business, the outside business agency that may have conducted an investigation has been determined by you to be irrelevant and that they should strike that testimony from their minds . . . . At this point, I must therefore respectfully request a mistrial to preserve for the record these issues.

The judge suppressed the document called The Podiatry Practice Plan and instructed the jury to strike any testimony the jury heard, as well as any notes its members took concerning the plan.

On appeal, plaintiff asserts reference to The Podiatry Practice Plan as a business providing discount podiatric care "overly prejudiced Dr. Weissman in front of the jury," therefore sustaining her objection was insufficient and her mistrial application should have been granted. Initially, we note that the judge provided the specific relief requested by plaintiff. Ordinarily, trial error that is induced, encouraged, acquiesced in, or consented to by counsel does not form a basis for reversal on appeal. State v Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974); see also State v. Pontery, 19 N.J. 457 (1955); State v. Roscus, 16 N.J. 415 (1954). A party cannot "beseech and request the trial court to take a course of action, and upon adoption by the [judge], take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial." Pontery, supra, 19 N.J. at 471.

Generally, an appellate court will not disturb a trial judge's ruling on a motion to declare a mistrial, absent an abuse of discretion. The level of error necessary to support a mistrial is constitutional error, that which is clearly capable of producing an unjust result. State v. La Porte, 62 N.J. 312, 318-19 (1973). Our role is not to substitute our judgment for that of the trial court, but to decide whether the judge pursued a manifestly unjust course. See Cosme v. Borough of E. Newark Twp. Comm., 304 N.J. Super. 191, 202 (App. Div. 1997), certif. denied, 156 N.J. 381 (1998). Plaintiff's request for a mistrial was made to "preserve the record." Plaintiff never asserted that the reference to discount podiatric care was manifestly unjust or required declaration of a mistrial. Conspicuously absent are any specific reasons advanced by plaintiff for urging the trial judge to grant a mistrial.

We are satisfied that the information elicited by defendant respecting The Podiatry Practice Plan was relatively insignificant. Simply put, the judge correctly exercised his discretion in denying plaintiff's request for a mistrial. The requested cautionary jury instructions were adequate to ameliorate any chance of prejudice. There is no reason to believe that the jury was unwilling or unable to follow the curative instruction as given. See State v. Manley, 54 N.J. 259, 270 (1969).

During closing arguments, while referring to Weissman's testimony, defense counsel waived one of Weissman's written reports in front of the jury. Plaintiff objected, asserting that the reports were not in evidence. Overruling the objection, the trial judge noted that defense counsel merely held the document up to show it to the jury, the jury did not see the contents, nor did counsel read the contents of the report to the jury. Moreover, the judge responded by telling the jury that what counsel says in closing argument is not evidence.

Plaintiff asserts, for the first time on appeal, that the judge erred in overruling his objection and should have, sua sponte, declared a mistrial. Plaintiff's contention lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). The record reveals that throughout Weissman's examination multiple references were made to the fact that he provided plaintiff with reports respecting his investigation and opinion. The jury was well aware of the existence of these reports. The judge correctly overruled plaintiff's objection.

Affirmed.

 

Plaintiff's complaint also named Leslie A. Hess, DPM, Jack M. Bondi, DPM, and Steven M. Fine, DPM, as defendants liable for the debts of Medford Podiatry Associates. Following the testimony, the trial judge dismissed plaintiff's claim against Medford Podiatry Associates, finding that there was no testimony to indicate that the group deviated from an acceptable standard of care. Plaintiff's appeal does not raise any claim against either Medford Podiatry Associates or the other named defendants. We therefore refer to Dr. Giorgianni as defendant.

The order denying plaintiff's relief indicates that there was oral argument; however, a transcript of that argument is not provided.

(continued)

(continued)

11

A-3812-04T2

 

September 25, 2006