ERIC A. KRANZ v. ARTHUR H. TIGER, M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2575-07T32575-07T3

ERIC A. KRANZ,

Plaintiff-Appellant,

v.

ARTHUR H. TIGER, M.D., and

ARTHUR H. TIGER, M.D., P.A.,

Defendants-Respondents,

and

HAROLD McGOVERN, ESQ., McGOVERN

AND ROSEMAN, P.A., and NOEL

SCHABLIK, ESQ.,

Defendants,

and

ARTHUR H. TIGER, M.D., and

ARTHUR H. TIGER, M.D., P.A.,

Third-Party Plaintiffs,

v.

HAROLD McGOVERN, ESQ., McGOVERN

AND ROSEMAN, P.A., and NOEL

SCHABLIK, ESQ.,

Third-Party Defendants.

_____________________________________

 

Argued: February 3, 2010 - Decided:

Before Judges Axelrad, Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3661-00.

Andrew J. Kyreakakis argued the cause for appellant.

Craig S. Combs argued the cause for respondents (Giblin & Combs, attorneys; Mr. Combs, of counsel and on the brief).

PER CURIAM

This matter returns after our reversal of a directed verdict and a no-cause verdict against the non-settling defendant after a subsequent trial. We affirm.

We need not recite the facts at length as they are contained in a published opinion. Kranz v. Tiger, 390 N.J. Super. 135 (App. Div.), certif. denied, l 92 N.J. 294 (2007). Suffice it to say that plaintiff filed a negligence action against James and Mary Mongey (the Mongeys) for personal injuries he incurred as a result of a fall he sustained while repairing the cable connection on the roof of property owned by them. His attorneys were defendants Harold McGovern and Noel Schablik. On or about December l9, l994, McGovern referred plaintiff to defendant, Dr. Arthur Tiger, to provide expert testimony in the area of orthopedics. On December 23, 1994, Dr. Tiger issued an initial report favorable to plaintiff, and in l999, Dr. Tiger issued a series of favorable follow-up reports. Without Dr. Tiger, plaintiff could not prove that any of his injuries were caused by the accident.

In June l999, following a case management conference, trial was scheduled for September l3, 1999, counsel were informed the case would not be adjourned, and the court suggested that the testimony of all experts be videotaped. McGovern did not take the videotape deposition of Dr. Tiger. Due to court scheduling issues, the jury was not selected until Thursday, September l6, l999. Dr. Tiger was scheduled to testify on Tuesday, September 21 at l:30 p.m. Monday was a religious holiday during which Dr. Tiger would not be working, and he had a planned vacation scheduled for Wednesday. As more fully discussed in our published opinion, the attorneys and doctor testified about various telephone conversations and messages and their respective understanding of whose responsibility it was to contact whom regarding Dr. Tiger's appearance.

The bottom line is that plaintiff agreed to a $500,000 settlement, which he believed was inadequate, solely because he understood that Dr. Tiger would not be available to testify. Id. at l40. Plaintiff then sued the attorneys and doctor. We described plaintiff's claim as follows:

Plaintiff's primary claim of negligence was that his attorneys and the doctor selected by them failed to communicate adequately on the doctor's appearance at trial. He also claimed breach of contract by the doctor. More specifically, he claimed that as a result of the miscommunication, the attorneys wrongfully assumed that the doctor was not available to testify when he in fact was available, and the doctor contributed to that assumption by failing to reasonably and accurately communicate with the attorneys personally or through his office staff.

[Id. at 148.]

The judge granted a directed verdict for defendants. We reversed and remanded. Id. at 141.

Plaintiff then settled with the two attorneys. In October 2007, trial proceeded solely against Dr. Tiger. After defense counsel completed his opening, plaintiff's counsel sought a mistrial, objecting to various comments, including a reference to plaintiff receiving money in the first settlement and from the settling attorneys, though there was no designation of either amount, and the statement that Dr. Tiger did not settle because he did nothing wrong. The court denied the motion and charged the jury, in part, that it was not to speculate about the reasons why the two attorneys settled the claim against them.

At the close of trial, the court declined plaintiff's request that the jury be charged on both breach of contract and negligence theories as to Dr. Tiger and sua sponte charged only on negligence. The jury determined the Mongeys were negligent and proximately caused plaintiff's injuries. The jury awarded plaintiff about $1.7 million in damages in the underlying case against the Mongeys. The jury then determined that Dr. Tiger was not negligent. Accordingly, a judgment of no cause for action was entered by the trial court in favor of Dr. Tiger on December l7, 2007. This appeal ensued.

On appeal, plaintiff argues: (1) defense counsel's comments to the jury in his opening resulted in reversible legal error, and (2) the court should invoke its jurisdiction and find liability or remand for a trial on liability because of the trial court's error in refusing to charge the jury on plaintiff's breach of contract claim. Defendant argues, but does not assert as a cross-appeal, that if the matter is remanded for a new trial, the trial court first must rule on the defense motion that was made to strike plaintiff's claim for damages related to the fusion surgery plaintiff underwent and the drop foot impairment he suffered, which the trial court reserved on, and if that motion is granted, a new trial on damages must be held.

Based on our review of the record and applicable law, we are not persuaded the court abused its discretion in declining to grant a mistrial and, instead, giving the instruction on "settling parties." Nor are we persuaded that under the circumstances and proofs of this case, the court's determination not to give both contract and negligence charges as requested by plaintiff was "clearly capable of producing an unjust result." R. 2:10-2. As we affirm the no-cause judgment, we need not address defendant's challenge, whether or not properly raised. R. 2:3-4; R. 2:4-2; see, e.g., State v. Elkwisni, 190 N.J. 169, 175 (2007); Campagna v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.), certif. denied, 168 N.J. 294 (2007) (holding that a respondent must cross-appeal to obtain relief from a judgment).

In his opening, defense counsel told the jury that plaintiff had also sued McGovern and Schablik but they had settled "because they didn't want to put their case in front of" a jury and had paid plaintiff money in excess of that which he had received from the property owners. He further commented that "Dr. Tiger [said] he didn't do anything wrong in this case" so he was not settling. The jury was not informed of the amount of either settlement. At the conclusion, plaintiff's counsel objected and moved for a mistrial, arguing, in part, that the comments improperly implied to the jury that Dr. Tiger was not negligent because he had not settled but that the attorneys had settled because they had done something wrong or negligent.

The court did not find this argument convincing as a basis for a mistrial. Rather, it promptly gave a blended charge of Model Civil Jury Charge l.l7 and the recently revised preliminary charge l.11. The court instructed the jury that when the case began there were three defendants but that the two attorneys settled the claim as asserted against them by plaintiff. The court specifically charged that the jurors were not to speculate as to the reasons for the settlement, noting that settlement does not mean the attorneys did anything wrong, nor were the jurors to be concerned about the amount of money, if any, paid to resolve the claim against the settling attorneys. The jurors were to decide the case based on the evidence they found credible and the law presented at the end of trial. Finally, the court instructed that only if the jurors found Dr. Tiger to be negligent, would they have to consider the conduct of the two settling attorneys. The court reminded the jury it would repeat and elaborate upon this instruction at the end of trial, which it did.

Plaintiff additionally argues on appeal that the opening comments were intended to portray him as greedy and not deserving of additional funds. Plaintiff also contends the comments were violative of our directive in the prior case, which he claims was only that the case was settled but not that any monies were paid to him. Kranz, supra, 390 N.J. Super. at l52.

In addressing a motion for a mistrial, the trial court is in the best position "to gauge the effect of a prejudicial comment on the jury in the overall setting" because it has the "feel of the case." State v. Winter, 96 N.J. 640, 647 (1984). See also Greenberg v. Stanley, 30 N.J. 485, 503 (1959). Accordingly, we extend substantial deference to a trial court's decision on a mistrial motion and uphold it on appeal unless there is a clear showing of abuse of discretion by the trial court. Ibid.; State v. L.P., 352 N.J. Super. 369, 379 (App. Div.), certif. denied, 174 N.J. 546 (2002). In reversing a ruling such as made by the trial court here, we must conclude that the prejudicial effect of the challenged comments in the defense's opening were so damaging that no instruction of the court could counteract their effect. See Greenberg, supra, 30 N.J. at 503-04.

We do not perceive this to be the case and thus find no clear abuse of discretion in the court's ruling on plaintiff's mistrial motion. We note that in our prior opinion we did not preclude defense counsel from informing the jury that "monies" were paid in settlement to plaintiff. We stated:

The only relevance of the settlement in this case is that the jury's verdict would have been reduced by that amount. Although the jury needed to be informed that the underlying action had ended with a settlement, it did not need to know, and, if the case had been properly submitted, would not have known, pursuant to a proper application of N.J.R.E. 408, the amount of the settlement.

[Kranz, supra, 390 N.J. Super. at 152 (emphasis added).]

Properly, on retrial, defense counsel did not mention the amount of either settlement.

Nor can we perceive how defense counsel's comments could be interpreted to suggest that by settling, the attorneys had, in essence, acknowledged sole liability. The court informed the jurors promptly after the openings, and reminded them in the concluding charge, that they should not speculate as to the reasons for the settlement and should decide the case based on the evidence. We presume the jurors followed the court's instructions and impartially listened to plaintiff's evidence against Dr. Tiger. See State v. Manley, 54 N.J. 259, 271 (1969). Merely because the jury returned a verdict of no-cause for action against Dr. Tiger does not mean that defense counsel's opening statement was clearly capable of producing an unjust result. R. 2:10-2.

Though a closer issue, we also are not persuaded that the court's deliberative determination not to charge breach of contract, even if erroneous, was sufficient to raise a reasonable doubt so as to lead the jury to a result it might not otherwise have reached. Gonzalez v. Silver, 407 N.J. Super. 576, 596 (App. Div. 2009). As aforestated, in our prior decision we characterized both plaintiff's negligence and breach of contract claims as to Dr. Tiger in terms of his failure to reasonably and adequately communicate with the attorneys personally or through his office staff regarding his appearance at trial. Kranz, supra, 390 N.J. Super. at l48. However, in his opening statement, plaintiff's counsel characterized his claim against Dr. Tiger solely in terms of negligence, commenting, in pertinent part:

Now, I'm not exactly sure, but I have some idea of what Dr. Tiger might say and I'd like to address that. First, he'll acknowledge all the things I told you; that I, Dr. Tiger, did not call [on Tuesday, September 21, 1999] nor [] did [I] have anyone to call to see if [my testimony at l:30 that day] was on. He says I assume that it was settled, but again, when you have such a major case with such major injuries that he himself confirmed were permanent in nature, and when you're advised that the case will not be adjourned, I suggest to you, ladies and gentlemen . . . that it was negligent of him simply to assume something of that great magnitude and to make absolutely no effort to check and see what was going on.

[Emphasis added.]

Plaintiff's counsel did not contend that Dr. Tiger, as the expert physician for plaintiff, had "an affirmative undertaking" to honor his contract to plaintiff and testify. See Spaulding v. Hussain, 229 N.J. Super. 430, 441 (App. Div. 1988). Nor did plaintiff present any proof that Dr. Tiger had either an express contractual obligation, or an implied contract by prior practice with McGovern and Schablik or with other attorneys, to call on the day of trial and confirm that the case had not settled and he needed to be present in court to testify. To the contrary, Dr. Tiger testified as follows:

I wouldn't call Mr. McGovern, because Mr. McGovern by convention is down at the courthouse. He's handling legal strategy. He knows if he's going to need me or not. It's happened to me many times where a case is on and the attorney never calls. If the attorney doesn't call you, the case is settled.

. . . .

I didn't reach out because . . . I had left a message with him the day before through Roxanne [his office manager, deceased shortly after] and the convention [is] if you need me, then you call me. That's the way it's always been.

Nevertheless, at the charge conference plaintiff's counsel requested the court instruct the jury on both breach of contract and negligence as to Dr. Tiger. Plaintiff relied on our acknowledgement in the prior opinion that his action against Dr. Tiger was based on both theories. Kranz, supra, 390 N.J. Super. at 146, 148. Plaintiff submitted proposed jury charges, which included model jury charges on negligence and contracts. A promissory estoppel charge as to Dr. Tiger was also submitted, tracking the language of Spaulding, supra, 229 N.J. Super. at 438-39. Plaintiff also included, in part, a special jury instruction that expressly cited our holding in Kranz and referenced Spaulding in support of his request for a breach of contract charge as to Dr. Tiger. Plaintiff further submitted a proposed jury verdict sheet, which in addition to the negligence questions as to the Mongeys in the underlying suit and Dr. Tiger and the settling attorneys in this action (including allocation), included the following "breach of contract" questions as to Dr. Tiger: (1) whether Dr. Tiger breached his contract with plaintiff, and (2) whether this breach proximately caused plaintiff's damages [as determined in the underlying action].

Plaintiff's counsel explained his contract theory as follows:

[PLAINTIFF'S COUNSEL]: Well, the terms of the contract is he agreed to show up and testify, and he breached that contract as an expert witness. . . . And the Appellate Division did say that . . . he can be liable under separate theories of negligence and breach of contract. . . .

. . . .

[DEFENSE COUNSEL]: . . . [W]hat act differs to the breach of contract case versus a negligence case?

THE COURT: . . . [W]hat do you get out of having different theories? This charge already is so voluminous. The jury is going to have a terrible time with it unless we give them some help.

. . . .

THE COURT: Why do we need both?

[PLAINTIFF'S COUNSEL]: Well, Judge, I mean, juries are funny, Judge. I mean, they may find breach of contract and not find negligence. I mean, that's been my experience.

. . . .

THE COURT: What did he breach?

[PLAINTIFF'S COUNSEL]: He had agreed that he would come to testify for [plaintiff] as an expert witness, and he breached the contract and didn't --

THE COURT: Yeah, but it's out of neglect.

[PLAINTIFF'S COUNSEL]: Well, Judge, who knows what it's out of.

. . . .

[PLAINTIFF'S COUNSEL]: His act is his failure to appear to testify --

[DEFENSE COUNSEL]: . . . What about if he had a heart attack? You failed to appear. But what act caused you to fail to -- it's the heart attack, so you can't breach the contract. . . .

[PLAINTIFF'S COUNSEL]: That would be your defense under those circumstances to my breach of contract.

Defense counsel and the court continued to express their concern that both causes of action arose out of the same underlying act and that, if the jury were charged on both theories, it would have difficulty distinguishing between the two. Of additional concern to the court appeared to be that if the jury found negligence, it could allocate liability between Dr. Tiger and the settling defendants. However, if the jury were charged with and found Dr. Tiger liable for breach of contract, even if the claim were based on a "negligent" breach by failing to appear to testify, defense counsel would be denied the ability to allocate liability with the two settling attorneys. The court concluded that "practically speaking," in order to "help the jury out" and simplify the case, plaintiff had to make an election. The court then made the election for plaintiff and dismissed his contract claim.

The court instructed the jury on negligence, stating, in part:

The plaintiff has alleged that the defendant, Doctor Arthur Tiger, was negligent in that he unexpectedly became unavailable[] for trial testimony after agreeing to testify as the plaintiff's medical witness in the underlying case. Since he was the sole medical witness regarding orthopedic injuries, the plaintiff claims that he was compelled to settle the Mongey case because his primary medical witness was unavailable.

The court then re-instructed on the reasonably prudent person standard as to affirmative acts and omissions as well as on proximate cause. The court then gave the related instructions regarding the settling attorneys. The verdict sheet was revised to encompass negligence questions. As the jury did not find Dr. Tiger to be negligent, it never reached the apportionment issues regarding the settling attorneys.

Plaintiff urges that a breach of contract claim is entirely different than a negligence claim as the latter relies on a reasonable person standard and the forseeability of harm. By contrast, breach of contract imposes an "affirmative undertaking" on the part of the physician to testify, Spaulding, supra, 229 N.J. Super. at 440, which plaintiff contends is a much stronger claim in the context of this case. Plaintiff emphasizes that the court permitted the plaintiff to pursue both causes of action in Spaulding and contends we expressly ruled that a jury's verdict on breach of contract and negligence can be molded. Id. at 439.

Spaulding contains some important distinctions factually and procedurally. In Spaulding, the plaintiff's treating neurologist agreed to testify in the negligence action but failed to arrive at the scheduled time even though he had given his assurance to plaintiff's attorney in a phone call that morning. Id. at 432-35. Consequently, the plaintiff was compelled to settle his negligence claim for $75,000, which he believed was a grossly inadequate sum. Id. at 435. The plaintiff then proceeded on a suit-within-a-suit, asserting both contract and tort theories against the physician. Id. at 432. The doctor's primary defense, not entirely corroborated by the relevant hospital records, was that during the morning and afternoon of the trial date he was with a critically ill trauma patient. Id. at 436. The jury found the plaintiff 35% comparatively negligent in the underlying case and total damages to be $250,000, and molded that verdict. Id. at 439. As to the contract action against the physician, the judge charged and the jury found that the plaintiff had proved every element of promissory estoppel and that the physician was not justified by a medical emergency in failing to appear. Id. at 438-39. On judgment NOV, the trial judge assessed 100% of causative negligence to the physician. We affirmed the judgment on both grounds. Id. at 441.

We stated, in part:

Our courts have recognized, on contract principles, the enforceability of a treating physician's affirmative undertaking to testify. . . . [W]e are satisfied that a treating physician has a duty to render reasonably required litigation assistance to his patient. But whether that assistance unequivocally and invariably requires the physician to testify in court is a question we need not here address. . . .

. . . [A] treating physician is not at liberty to ignore with impunity the basic obligation of rendering a reasonable modicum of litigation assistance. Nor is he free, without compelling professional justification, to renege on a promise, reasonably and detrimentally relied upon by his patient, to render specific litigation assistance. That is what the jury here found [the physician] to have done. That finding was clearly supported by the weight of credible evidence and, just as clearly, supported the conclusion of defendant's liability to plaintiff on both tort and contract grounds.

[Id. at 440-4l (citations omitted).]

Other than the underlying negligence case, Spaulding only involved one defendant against whom the suit-within-a-suit was being tried. Thus, as we were not concerned about allocating liability among settling defendants, in our discussion we somewhat overlapped the contract obligation of a physician's "affirmative undertaking" or "promise to testify" in court and his or her litigation duty as a professional under negligence concepts. Id. at 440. Even though the plaintiff was successful on both theories, he still received $162,500 plus prejudgment interest for his loss by reason of the physician's nonappearance at trial. Id. at 445.

Here, the trial court had a concern about potential allocation problems. In addition, after hearing several days of testimony, the court was of the impression that the facts upon which the breach of contract claim rested were the same facts upon which the negligence claim was based. It is undisputed that Dr. Tiger was retained as plaintiff's expert in the area of orthopedics, which included an obligation to testify in court if the case did not settle. Plaintiff, his girlfriend who made a call to Dr. Tiger's office on the day of trial, both attorneys, and Dr. Tiger testified. Thus, the jury heard what transpired in the month leading up to the September 21, 1999 trial date, and, in particular, the specific details of everyone's version of what occurred beginning on Sunday, September 19 through the aborted trial date and settlement. Dr. Tiger told the jury the reason why he did not appear at trial, namely, that he was not called by the attorney and thus assumed the case had settled. He explained that was the prior practice he as a retained expert had always followed in litigation.

Plaintiff's theory was that Dr. Tiger was "negligent" in failing to follow up with the attorneys about the status of his appearance, particularly in view of the significance of the case. Plaintiff presented no testimony or evidence that Dr. Tiger had an affirmative express or implied contractual obligation to call the attorneys or have his staff do so. Plaintiff needs to assert more than "juries are funny" to establish an error clearly capable of producing an unjust result. Plaintiff's breach of contract claim is essentially a professional negligence duty claim, phrased in a contract context. Based on our review of the record, we are not satisfied that plaintiff was prejudiced by the jury's analysis of the case based on the negligence charge of reasonable person and forseeability of harm. Even if the jury had been charged on the allegedly "stronger" claim of breach of contract, it is most likely that, based on the facts of this case, it would have gone through the same mental process and the outcome would have been the same.

Based on our affirmance of the no cause verdict, we need not address the argument raised by Dr. Tiger respecting the scope of any new trial.

 
Affirmed.

The complaint was filed in l994, but the Mongeys' intervening bankruptcy delayed the proceeding until June l999. Kranz, supra, 390 N.J. Super. at 142.

McGovern testified that he expected a jury verdict of between one million and two million dollars. Id. at l44.

Plaintiff submitted the following charge, acknowledged as taken verbatim from Kranz, supra, 390 N.J. Super. at 146:

Plaintiff's action against Tiger was based on negligence and breach of contract. "Our courts have recognized, on contract principles, the enforceability of a treating physician's affirmative undertaking to testify." Spaulding, supra, 229 N.J. Super. at 440. And our courts have also recognized that the action for failure to appear may be based on negligence. Id. at 437-41. The physician's duty is clear:

[He] is not at liberty to ignore with impunity the basic obligation of rendering a reasonable modicum of litigation assistance. Nor is he free, without compelling professional justification, to renege on a promise, reasonably and detrimentally relied upon by his patient, to render specific litigation assistance [such as testifying in court].

[Id. at 441 (citations omitted).]

Earlier in the charge the court stated that Dr. Tiger contended he was available to testify and it was the attorneys who failed to contact him to come to court on September 21, 1999.

The jury had found a causative breach of duty on the physician's part but allocated a portion of total negligence to the plaintiff for action taken by his attorney. Id. at 432, 439.

We note that Dr. Tiger is not plaintiff's treating physician, as opposed to the defendant in the Spaulding case, but the distinction is immaterial here.

(continued)

(continued)

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A-2575-07T3

March 10, 2010