DAWN MOHRLE v. STEVE HO-SUK KIM, M.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4509-07T24509-07T2

DAWN MOHRLE,

Plaintiff-Appellant,

v.

STEVE HO-SUK KIM, M.D.;

UMDNJ,

Defendants-Respondents.

_____________________________

 

Argued January 14, 2009 - Decided

Before Judges Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-0132-06.

Vincent Jesuele argued the cause for appellant (Kessler, DiGiovanni & Jesuele, LLP, attorneys; Mr. Jesuele, on the brief).

Neil Reiseman argued the cause for respondents (Reiseman, Rosenberg & Pfund, PC, attorneys; Mr. Reiseman, of counsel and on the brief; Pamela Castillo, on the brief).

PER CURIAM

Plaintiff Dawn Mohrle appeals from a jury's defense verdict. Plaintiff's action filed against defendants Steve Ho Suk Kim, M.D., and his employer, the University of Medicine and Dentistry of New Jersey (UMDNJ), was for alleged medical negligence arising after Dr. Kim performed a breast biopsy on plaintiff. Plaintiff asserted Dr. Kim excised too much breast tissue and improperly closed the incision, resulting in scarring and deformation of her breast. On appeal, plaintiff argues the trial court erred in allowing the defense to use a medical text in the cross-examination of her expert on the proper method of closing a deep breast incision and in denying her motion for a new trial. We affirm.

I

On February 25, 2005, Dr. Kim performed an excisional left breast biopsy to ascertain the nature of microcalcifications, possibly indicative of breast cancer. In an excisional biopsy, the surgeon makes an incision in the skin and removes all or part of the abnormal breast tissue for examination under a microscope. Dr. Kim extracted roughly forty-eight cubic centimeters of breast tissue, which he confirmed was benign. Plaintiff alleged an "excessive amount of breast tissue was excised [during the procedure,] and the incision was closed improperly leaving plaintiff with a severe cosmetic deformity of her breast."

A four-day jury trial began on March 25, 2008. Plaintiff's breast surgeon expert, David Befeler, M.D., testified that Dr. Kim deviated from accepted medical standards and practices, as he needed to excise only eight cubic centimeters of breast tissue for the biopsy, and he failed to suture the deep breast tissue when he closed the incision.

During cross-examination, Dr. Befeler stated it would be inappropriate for a doctor, performing an incisional breast biopsy, to suture only the epidermis and subcutaneous tissue layers. He opined it was necessary to also suture the deep skin layers because "the underneath breast tissue [gets] fastened to the pectoralis," which is the chest muscle. Dr. Befeler stated that in forty years of performing breast surgery, he had "never studied or seen in a textbook or learned" that it would be appropriate not to suture the deep tissue layers when closing a breast incision following a biopsy. Cross-examination continued on that issue as follows:

Q All right. Now, are you familiar with a textbook that your attorney just happened to have on the table this morning and I looked at, Diseases of the Breast, Second Edition, by Jay Harris, Mark Litman, Monica Morrow, and Ken Osmond []?

A In honesty, no.

. . . .

A I have no idea what's in it?

Q You don't? You've never heard of this? . . .

A I've heard of it, but I'm not familiar with it.

Q And how have you heard of it?

A Because I'm familiar with it radiographically.

Q And this is not a text that's used in the medical schools and relied upon by your peers in terms of breast surgery?

A I have no idea.

Q You don't?

A No.

Q Doctor would you agree with this statement, and this is under the heading of excisional biopsy in this book. . . .

. . . .

Q ["]The best approach is almost always not to try to approximate the breast perin--["]

A Per[e]nc[he]ma [].

Q ["]Per[e]nc[he]ma.["] Where is the breast per[e]nc[he]ma?

A That's the rest of the breast that I was pointing to before--

. . . .

A -- the underneath stuff.

Q But you're saying in this case that the standard required my client to approximate the breast per[e]nc[he]ma.

A That's exactly what I'm saying.

Q So you don't agree with this statement [in the text] at all?

A I don't agree with that statement as far as it goes.

. . . .

A I don't agree with it for an incision as large as the one that was done in this case. . . .

Dr. Kim defended his decision not to suture the deep breast perenchema. During his direct testimony, he was asked whether he was familiar with the text, Diseases of the Breast. Dr. Kim stated the volume was recognized by breast surgeons as an authority regarding excisional biopsy procedures. He stated the text was one of the "[b]ibles of surgery" for residents and medical students.

We note no objection was interposed during Dr. Befeler's testimony. Two sidebar discussions were requested and occurred while Dr. Kim related his reliance on Diseases of the Breast and another text as authorities in the field of breast surgery. The sidebars were not recorded, however, immediately following Dr. Kim's statements, the court gave the jury an instruction. The trial judge explained the significance of the textbook references was to challenge the credibility of Dr. Befeler, who stated he had never seen a textbook that suggested not to close the deep tissue layers of the breast after incision. The references were not to be used to determine whether Dr. Kim was negligent in performing the surgery.

The jury rendered a verdict of no cause for action in favor of Dr. Kim, finding he had not deviated from the accepted standards of medical practice in his care and treatment of plaintiff. Plaintiff moved for a new trial, which was denied. On appeal, plaintiff argues for reversal and a new trial on the single challenge that the trial court incorrectly admitted use of the medical text as a "learned treatise." See N.J.R.E. 803 (c)(18).

II

Generally, we give "substantial deference" to the trial judge's evidentiary rulings. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999) (citations omitted), certif. denied, 163 N.J. 79 (2000). The admission or exclusion of proffered evidence rests within the sound discretion of the trial judge, and we do not disturb that ruling on appeal unless there is a clear abuse of that discretion. Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991), certif. denied, 140 N.J. 329 (1995); see also Purdy v. Nationwide Mut. Ins. Co., 184 N.J. Super. 123, 130 (App. Div. 1982).

The admission of learned treatises as reliable authority falls within an exception to the general prohibition on the use of hearsay evidence to prove the truth of the matter asserted. Nearly identical to its federal counterpart, N.J.R.E. 803 (c)(18) states:

To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by testimony or by judicial notice. If admitted, the statements may not be received as exhibits but may be read into evidence or, if graphics, shown to the jury.

In order to use a learned treatise as substantive evidence, an expert witness must lay a foundation "for the reliability and authoritativeness" of the text. Jacober v. St. Peter's Med. Ctr., 128 N.J. 475, 491 (1992) (citing Schneider v. Revici, 817 F.2d 987 (2d Cir. 1987)), modified in part on other grounds, 130 N.J. 586 (1992). "Mere publication does not automatically render a text a reliable authority." Ibid. (citing Meschino v. N. Am. Drager, Inc., 841 F.2d 429, 434 (1st Cir. 1988)). "[T]he treatise must be relied upon by experts in the field, albeit not necessarily by the expert on the stand." Bird v. Somerset Hills Country Club, 309 N.J. Super. 517, 523 (App. Div.), certif. denied, 154 N.J. 609 (1998); Jacober, supra, 128 N.J. at 495. Once established as reliable, "the contents of learned treatises may be introduced as substantive evidence by experts on both direct and cross examination." Jacober, supra, 128 N.J. at 478.

However, "a party may not generally introduce a treatise into evidence as a substitute for expert testimony." Morlino v. Med. Ctr., 152 N.J. 563, 580-81 (1998) (citing Adamski v. Moss, 271 N.J. Super. 513, 519-22 (App. Div. 1994)); Tyndall v. Zaboski, 306 N.J. Super. 423, 428 (App. Div. 1997), certif. denied, 153 N.J. 404 (1998); Canesi v. Wilson, 295 N.J. Super. 354, 360 (App. Div. 1996), aff'd in part and rev'd in part, 158 N.J. 490 (1999); see also Biunno, Current New Jersey Rules of Evidence, Comment on N.J.R.E. 803(c)(18).

In this matter, the text was used to impeach the credibility of Dr. Befeler, who did not rely on the volume to formulate his opinion. Plaintiff acknowledges the text would have been properly admitted as a learned treatise to question the weight of his opinion had Dr. Befeler conceded the text was a recognized standard authority. Ruth v. Fenchel, 21 N.J. 171, 176 (1956), modified on other grounds, Jacober, supra, 128 N.J. at 478. However, she contends defendant's failure to first qualify the text "as a reliable authority by testimony or by judicial notice" precluded its use to cross-examine Dr. Befeler. We reject this argument for three reasons.

First, applying the plain error standard, we conclude the questions posed to Dr. Befeler, referencing the Diseases of the Breast, did not prejudice plaintiff or have the clear capacity to produce an unjust result. R. 2:10-2; Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 128 (2008). Dr. Befeler asserted he was aware of no authority that ran contrary to his opinion regarding the necessity to suture the deep tissue layers following the removal of the breast tissue. The text was read to challenge and question the strength of Dr. Befeler's opinion. No objection was made challenging its reliability. Further, Dr. Befeler was permitted to explain his position that plaintiff's case posed a different circumstance than that described in the text because of the volume of breast tissue removed.

Second, the text was an admissible relevant learned treatise. We note it was plaintiff who initially proposed utilization of the text as a learned treatise. Three weeks prior to trial, plaintiff's counsel wrote: "Please be advised that plaintiff may rely on the textbook entitled 'Diseases of the Breast' authored by Harris, Liptman, Morrow and Hellman in cross-examination of defendant's liability expert(s) in the lawsuit." A later pretrial exchange proposed the use of Chapter 14 of Diseases of the Breast "by Dr. Befeler as a [l]earned [t]reatise in support of his opinions." The apparent pre-trial acceptance of the volume, an accepted recognized authority coincident with plaintiff's failure to object during the cross-examination of Dr. Befeler, reinforced the perception that plaintiff agreed the text was admissible. Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 495 (2001). Plaintiff offered no hint of a possible need for a hearing pursuant to N.J.R.E. 104 to address admissibility. The need for such a determination was not obvious under these circumstances.

Plaintiff challenged the permissive use of the treatise as support for her motion for a new trial. In evaluating the argument against all trial evidence presented, including defendant's testimony establishing the accepted use of the text as authority in the field, Judge Carey stated, "I think that there was no question that this book was a learned treatise."

Finally, we disagree with plaintiff's argument that permissive use of the treatise is defeated when the examined expert declines to attest to its established authority. The Supreme Court in Jacober, supra, recognized the need to avoid an expert's ability to block cross-examination using a reliable treatise by refusing to recognize its authority. 128 N.J. at 490. The Court adopted Federal Evidence Rule 803(18) to permit a learned treatise to be admitted as substantive evidence on both direct and cross-examination. Id. at 491. Further, the Court rejected a restrictive interpretation of its holding in Ruth, supra, 21 N.J. at 176, which would require the examined expert to affirmatively acknowledge the text as an authoritative source before allowing its use on cross-examination. Jacober, supra, 128 N.J. at 490; see Richard J. Biunno, New Jersey Rules of Evidence, Comment 3 to N.J.R.E. 705, 954 (2007); see also DeGraca v. Laing, 288 N.J. Super. 292, 301 (App. Div.) (reversing trial judge's denial of treatise use in cross-examination of defense expert, who would not acknowledge it was authoritative, because plaintiff's expert adequately established authoritativeness of text), certif. denied, 145 N.J. 372 (1996). Had Judge Carey been aware of plaintiff's objection, he would have required defendant to make a proffer that his expert would provide the necessary testimony regarding the acceptance of the text as a reliable authority.

Moreover, the Legislature chose not to import the federal rule in toto. It replaced the federal rule's use of the phrase "the testimony or admission of the witness or by other expert testimony" with simply "testimony," noting, in the official commentary to N.J.R.E. 803(c)(18), "adoption of this rule represents a change in practice by allowing the use of learned treatise evidence even if an expert witness fails to acknowledge that it is authoritative, so long as the reliability of the authority is established by other testimony or by judicial notice."

We do not view the use of the text in questioning Dr. Befeler as an attempt to admit the text substantively without benefit of foundation. Instead, it was permissively used for impeachment in light of Dr. Befeler's absolute statement that he knew of no text supporting defendant's position. See Maggipinto v. Reichman, 607 F.2d 621, 624 (3d Cir. 1979).

In a related challenge, plaintiff argues the trial court erred in allowing Dr. Kim, who testified as a fact witness not an expert, to utilize the same learned treatise to bolster his own testimony. We disagree and note the argument countermands the "liberalized approach" of N.J.R.E. 803(c)(18), which expands the scope of permissible testimony and recognizes "that in some special instances, a lay witness may be able to testify as to the treatise's authoritativeness." N.J.R.E. 803(c)(18). Official Commentary; Jacober, supra, 128 N.J. at 496. Dr. Kim properly laid the foundation for use of the text as an authority, and we discern no abuse of discretion in Judge Carey's evidential determination.

III

We next consider plaintiff's challenge to the denial of her motion for a new trial. In reviewing a motion for a new trial, the trial judge cannot substitute his or her judgment for that of the jury. Rather, the judge is "required to canvass the record [and weigh the evidence] to determine whether reasonable minds might accept the evidence as adequate to support the jury's verdict." Hacker v. Statman, 105 N.J. Super. 385, 391 (App. Div.) (citing Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962)), certif. denied, 54 N.J. 245 (1969); Dolson v. Anastasia, 55 N.J. 2, 6 (1969). A jury's verdict can only be disturbed when, on examination of the evidence, the verdict "is found to be so contrary to the weight of the evidence as to give rise to the inescapable conclusion that it was the result of mistake, passion, prejudice, or partiality. . . ." Aiello v. Myzie, 88 N.J. Super. 187, 194 (App. Div.) (citing Hager v. Weber, 7 N.J. 201, 210 (1951)), certif. denied, 45 N.J. 594 (1965). "Jury verdicts should be set aside in favor of new trials only with great reluctance, and only in cases of clear injustice." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). The motion should be granted only when it clearly appears there was a miscarriage of justice. Ibid.

Applying these standards, and based upon our determination the learned treatise evidence was properly before the jury, which was free to accept or reject the evidence, id. at 383, we are satisfied the verdict must not be disturbed.

Affirmed.

(continued)

(continued)

14

A-4509-07T2

March 26, 2009