JAMES WHITE v. JULIA MILLER, M.D

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0775-08T30775-08T3

JAMES WHITE,

Plaintiff-Respondent,

v.

JULIA MILLER, M.D.,

Defendant-Appellant.

_________________________________________________

 

Submitted September 9, 2009 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey,

Law Division, Special Civil Part, Middlesex County, Docket No. DC-010947-08.

Alan Zark, attorney for appellant.

James White, respondent, pro se.

PER CURIAM

Defendant, Julia Miller, M.D., a plastic surgeon, appeals from a verdict against her and in favor of plaintiff, James White, in the amount of $2,900 plus costs, entered following a bench trial in the Special Civil Part. On appeal, defendant presents the following arguments:

(A) THE VERDICT OF THE COURT WAS INCONSISTENT WITH THE EVIDENCE AMOUNTING TO A PERVASIVE SENSE OF WRONGNESS AND THEREFORE SHOULD BE OVERTURNED.

(B) THE TRIAL COURT ERRED IN CONSIDERING HEARSAY TESTIMONY BY PLAINTIFF WHICH WAS THE SOLE BASIS FOR THE FINDING BY THE COURT IN FAVOR OF THE PLAINTIFF AND THEREFORE SHOULD BE OVERTURNED.

(C) UNER THE MOST FAVORABLE LIGHT, THE EVIDENCE CONSIDERED ON BEHALF OF THE PLAINTIFF IS INSUFFICIENT TO SUPPORT THE VERDICT AND IT SHOULD BE OVERTURNED.

(D) THE VERDICT ADVERSE TO THE DEFENDANT WAS SO INADEQUATE AS TO BE THE OBVIOUS RESULT OF AN EFFORT BY THE COURT TO CREATE A COMPROMISE IN LIEU OF A LEGITIMATE VERDICT BASED UPON THE EVIDENCE ADDUCED AT TRIAL AND SHOULD BE OVERTURNED.

(E) THE AMOUNT OF THE VERDICT FOR PLAINTIFF WAS EXCESSIVE, AGAINST THE WEIGHT OF THE EVIDENCE, AGAINST THE EVIDENCE PRESENTED AND AGAINST THE LAW.

Following our review of the transcript of trial, in light of the arguments presented by the parties and applicable legal principles, we affirm.

Our review of the factfinding conducted by the trial judge in this matter is limited. His verdict must be sustained if it could reasonably have been reached on sufficient or substantial credible evidence present in the record, considering the proofs as a whole and giving due regard to the ability of the judge to gauge credibility. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

At the one-day trial of this matter, two witnesses testified: plaintiff and defendant. Both agreed that plaintiff contracted with defendant for the performance of cosmetic laser ablation on plaintiff's lower eyelids. Plaintiff determined to undergo the procedure following consultations on February 22, 2007, June 21, 2007, September 6, 2007, and December 17, 2007. On each occasion, plaintiff was informed that he needed to stay out of direct sunlight for a six-month period before and after the procedure.

On December 19, 2007, plaintiff booked the procedure, and at that time was given an informed consent form, which, among other things, stated: "I have been told that this procedure will not totally reduce my wrinkles and/or scars, and have also been apprised of the risks of direct sun exposure after this treatment." Plaintiff testified that he understood this warning to refer to the six-month periods before and after the procedure during which he was to avoid exposure to direct sunlight.

At the time of booking, plaintiff also executed a Financial Agreement, which provided for a nonrefundable $500 booking fee and further provided:

If you cancel your case less than 5 days before surgery, you will lose your entire fee paid. [Enumerating exceptions that are not relevant to this case.]

If you change your surgery date less than 10 days prior to surgery, you will lose your booking fee and be required to pay another $500 to secure a date. If you change your surgery date less than 5 days prior to surgery, you will lose your entire fee paid unless you meet one of the exceptions above. If we hold your booking fee more than six months, you will lose it and have to pay another $500 to schedule surgery.

It is unclear from the record whether surgery was scheduled for January 8 or 10, 2008.

Plaintiff testified that, on New Year's Eve, while in Florida, he spoke to someone who had undergone the procedure that plaintiff had scheduled, who told him "do you know that you can never tan . . . again after that because it burdens the pigments of the skin . . . you'll end up with white spots." Plaintiff stated that, on January 2, he called defendant from Florida to confirm this statement, and then he called multiple times on January 3, eventually reaching her. Plaintiff testified further that he asked defendant

is this true because somebody told me that, that I can never tan again. So, Mr. White, I apologize if I didn't explain it properly, but, yea, they're correct. I said, well, what about the six months. She said, no the six months is direct sunlight, but you can't tan after that. I said, well in that case I said I would have never, you know, signed the contract. I didn't know that because I do like to go tanning. I like the sun and the beach, whatever. I said, in that case I'd rather not do the procedure.

Plaintiff formally cancelled the surgery on January 7.

At trial, defendant admitted speaking to plaintiff in Florida. However, she denied inadequately informing plaintiff of the need to avoid tanning, stating that she had told plaintiff during the telephone call "the risk is as I explained it to [you] before that [you] need to be out of direct sunlight six months before, six months after, and that you should be able to tan, but I can't promise the risk is zero." Additionally, defendant testified that, on February 22, 2007, she had informed plaintiff of the risk of "hypo or hyper pigmentation to the skin with increased risk with tanning." She further testified that on September 6, she had again "explained the risks of discoloration especially since [he] likes to tan," and that he "needs to be out of the sun a few months before and a few months after las[er] to help decrease the risk of skin discoloration." On December 17, defendant's office notes indicated that plaintiff "was afraid of the laser due to tanning, but I explained that the risk is low of skin discoloration if he uses sunscreen. He will be able to tan, but risk not zero." Plaintiff testified further that

I explain to every patient that you will always have to be careful of the amount of sum exposure that you have and you should always wear suntan lotion and you should always wear sun protection because that skin is like fresh newborn baby skin and will always be sensitive. So you can tan, but you must be careful, and there is always a small risk of something happening.

Defendant denied that she had admitted to plaintiff that she had failed to fully explain the risks of the procedure, testifying instead that she had only said that she was sorry that he had not understood her.

On January 10, plaintiff consulted with defendant regarding alternative procedures, and was advised by defendant that she could perform a "skin pinch." However, plaintiff's wife opposed it. Thereafter, plaintiff sought a refund of the money paid for the surgery, but was offered only a credit. Suit ensued.

After hearing the testimony in the matter, the judge found that there had not been a meeting of the minds as to the consequences of the laser procedure. The judge stated:

Both sides agreed that he was a person who liked to tan, and I, I find that the defendant did, in fact, tell the plaintiff that he had to be careful and out of sunlight for six months before and six months after the surgery, but that an admonition of further staying out of, avoiding tanning was not clearly imparted to the plaintiff and, therefore, that when he called on the 3rd he was able to cancel the surgery.

Thus, he voided the contract. Accepting plaintiff's testimony that he had paid defendant $5,500, and that he had received other services costing $1,600, the judge further subtracted $1,000 in booking fees and awarded plaintiff $2,900.

We conclude that the record in this matter supports the trial judge's determination to rescind the contract between plaintiff and defendant as the result of a unilateral mistake of fact as to the consequences of the laser ablation procedure. The record clearly supports the conclusion that plaintiff was aware of the need to stay out of direct sunlight during the six months before and after the procedure. However, plaintiff testified that, in their January 3, 2008 telephone conversation, defendant confirmed that he could never tan again and that if he tried to do so, he would end up with white spots in the treated areas. Indeed, this statement is consistent with the doctor's caution that plaintiff would have to wear sun screen on his lower lids, because the treated skin was like "fresh newborn baby skin." The problem, from plaintiff's perspective, is that until January 3, 2008, he was never explicitly informed that he could not safely achieve a tan on his lower eyelids. Although defendant may have regarded her explanation as conveying this information, it apparently did not.

A contract may be rescinded on the grounds of mistake if (1) the mistake is of such great consequence that to enforce the contract as made would be unconscionable; (2) the subject of the mistake must relate to a material feature of the contract; (3) the mistake must have occurred notwithstanding the reasonable care of the mistaken party; and (4) relief by rescission must be not be accompanied by serious prejudice to the other party, except for loss of the bargain. Dugan Const. Co., Inc. v. N.J. Turnpike Auth., 398 N.J. Super. 229, 242 (App. Div.), certif. denied, 196 N.J. 346 (2008). In the circumstances presented here, the trial judge was warranted in finding those elements had been established. Certainly, the consequences of the surgery were clearly material to the contract between plaintiff and defendant. Moreover, we have no difficulty in determining that it would have been unconscionable to enforce the contract absent knowledge of and full consent to incurring those consequences. There is nothing in the record to suggest that plaintiff was unreasonable in not fully recognizing the consequences of the procedure, and rescission caused no serious prejudice to defendant, other than the loss of the bargain and an office expense of less than $1,000.

We reject defendant's position that the judge's determination was improperly based upon hearsay contained in a lay opinion. The hearsay was not offered for its truth; what plaintiff offered was the fact that defendant admitted its truth. Such testimony was clearly admissible pursuant to N.J.R.E. 803(b)(1). Stoelting v. Hauck, 32 N.J. 87, 106 (1960).

As a final matter, we reject defendant's challenge to the amount of the verdict, finding a sufficient evidentiary basis to have been established for its entry through the testimony of plaintiff and the introduction of the parties' financial agreement into evidence. TDC, L.L.C. v. LMC, L.L.C., 191 N.J. 1, 14 (2007).

 
Affirmed.

(continued)

(continued)

9

A-0775-08T3

September 11, 2009