CHARLES J.F. McHUGH, M.D. v. UNIVERSITY MEDICAL CENTER AT PRINCETON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3092-08T23092-08T2

CHARLES J.F. McHUGH, M.D.,

Plaintiff-Appellant,

and

KATHLEEN M. McHUGH,

Plaintiff,

v.

UNIVERSITY MEDICAL CENTER AT

PRINCETON,

Defendant-Respondent.

____________________________________

 

Argued January 27, 2010 - Decided

Before Judges Miniman and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1030-05.

Christina J. Vassiliou Harvey argued the cause for appellant (Sterns & Weinroth, attorneys; Michael A. Spero, of counsel and on the brief; Ms. Harvey, on the brief).

Joseph K. Cooney argued the cause for respondent (Widman, Cooney & Wilson, attorneys; Mr. Cooney, on the brief).

PER CURIAM

Plaintiff Charles J.F. McHugh appeals the denial of his motion for a new trial following a jury verdict of no cause of action with respect to his personal injury claim against defendant University Medical Center at Princeton (Medical Center). He also appeals the denial of his subsequent motion for relief from the judgment pursuant to Rule 4:50-1. We affirm the denial of the motion for a new trial, but remand to the trial court for consideration on the merits of McHugh's Rule 4:50-1 motion.

I.

In 2003, McHugh was an emergency room physician employed by Princeton Emergency Physicians, a medical group that had a contract to staff the emergency department at the Medical Center. On the morning of April 22, 2003, McHugh arrived at the Medical Center for his 8:00 a.m. shift.

At some point after McHugh began his shift, there was a back-up of the floor drain in the emergency department, which is located in the S-wing hallway. At the conclusion of his shift, at approximately 7:00 p.m., McHugh went to the doctor's lounge, which is also in the S-wing hallway, to retrieve his belongings and put away his lab coat. McHugh noticed yellow "wet floor" signs and a boom, an absorbent roll used to clean up spills, in the hallway within a few feet of the lounge door. Upon entering the doctor's lounge and turning on the light switch, McHugh slipped and fell. McHugh testified that he slipped on a puddle of sewage, which he identified by its odor.

As a result of the fall, McHugh suffered tightened muscles, back pain, and an L5 pars fracture. According to McHugh, after undergoing pain treatment and surgery for his injuries, he still suffers from a great deal of pain and can only work reduced shifts and handle two-thirds of the work load of an average emergency room physician. Additionally, he is no longer able to do heavy yard work, household chores, or carry heavy items.

On April 15, 2005, McHugh filed a complaint against the Medical Center alleging that it was negligent in failing to maintain its premises in a safe condition. McHugh's attorney served Uniform C and Uniform C2 Interrogatories on the Medical Center, which answered them on September 22, 2005. In its interrogatory answers, the Medical Center designated Frank Groman as a person with knowledge relevant to the case, and specifically identified Groman as "the hospital's plumber/pipe-fitter" who "cleared the floor drain back-up in the S-Wing hallway in the early afternoon of 4/22/03." Groman's address was listed as "c/o The Medical Center at Princeton."

McHugh's attorney deposed Groman on June 15, 2006. Groman testified that, on the day of McHugh's fall, he had snaked out the drains in the S-wing because he received a report that there had been a back-up. He stated that it was his job to clean up the "heavy stuff." He then placed cones and barricades around the drain outside the physician's lounge and called the environmental services department to assist with the remaining clean up. Groman further testified that "there was no sign of anything that had leaked through underneath the door" and that he distinctly recalled looking in the doctor's lounge to make "sure that the area was nice and clean and dry."

The case was originally listed for trial in November 2007. On October 26, 2007, McHugh's attorney served the Medical Center with a notice in lieu of subpoena seeking the production of Groman to testify at trial.

Following several adjournments, the case was called for trial on October 27, 2008, at which time a pretrial conference was held. During the conference, McHugh's attorney reminded the Medical Center's attorney about the outstanding notice for Groman's testimony, and was assured that Groman would be produced for testimony at trial if counsel so desired. As part of the pretrial exchange, McHugh served a witness list that identified Groman as a potential witness.

The actual trial took place on October 28, 29, and 30, 2008, before a jury. Just before the close of McHugh's case, his attorney read to the jury portions of the Medical Center's responses to requests for admissions and interrogatories. He also read a portion of Groman's deposition to the jury, but did not call him as a witness. With McHugh's consent, the defense attorney also read a portion of Groman's deposition.

On October 30, 2008, within sixteen minutes of starting its determinations, the jury returned a verdict of no cause of action. The following morning, McHugh's attorney telephoned the engineering department at the Medical Center and asked to speak with Groman. He was informed for the first time that Groman had not been an employee at the Medical Center for approximately two years.

On November 4, 2008, McHugh's attorney wrote a letter to the trial judge regarding the Medical Center's failure to disclose Groman's change of employment and contact information. In response, the defense attorney acknowledged that he had been aware prior to the trial that Groman was no longer an employee of defendant and that discovery responses were never amended to reflect the same.

On November 13, 2008, the trial judge entered an order for judgment dismissing McHugh's claims. He subsequently advised McHugh's attorney that no action could be taken on the discovery issue without a formal motion.

Thereafter, on November 19, 2008, McHugh filed a motion for a new trial, alleging that the Medical Center committed a discovery violation in failing to inform McHugh that Groman was no longer its employee. He also alleged that the jury's verdict was against the weight of the evidence. Without hearing oral argument, the trial judge entered an order denying the motion on January 15, 2009, having placed his reasons on the record. The judge concluded that, although the Medical Center should have informed McHugh that Groman was no longer an employee, McHugh had failed to demonstrate any actual prejudice. He noted that McHugh's motion contained nothing to demonstrate that contact with Groman prior to trial would have yielded additional evidence in McHugh's favor. This appeal followed.

After filing the appeal, McHugh filed a motion for relief from the judgment. The judge denied that motion on the grounds that he had no jurisdiction to entertain such a motion because of the pending appeal. On May 11, 2009, McHugh amended the notice of appeal to include the denial of the second motion. We denied McHugh's subsequent motion for a partial remand to the trial court.

II.

McHugh argues on appeal that the trial judge erred in denying his motion for a new trial because he was prejudiced by the Medical Center's discovery violation, i.e., its failure to disclose that Groman's employment by the Medical Center had ended and that the contact information contained in its interrogatory responses had changed, especially in light of McHugh's having served a notice to produce Groman. The Medical Center argues, as it did in the Law Division, that there was no actual prejudice because Groman would have appeared at trial had McHugh's attorney asked that he be produced.

The scope of our review of an order denying a new trial is limited. "The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1; see also, Dolson v. Anastasia, 55 N.J. 2, 5-7 (1969) (holding that the scope of appellate review is the same as that applied by the trial judge on a motion for a new trial under Rule 4:49-1). That rule provides that a "trial judge shall grant the motion [for 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. 4:49-1(a).

To decide if there was such a miscarriage, we defer to the trial court with respect to "intangibles" not transmitted by the record but otherwise make our own independent determination of whether a miscarriage of justice occurred. Carrino v. Novotny, 78 N.J. 355, 360 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson, supra, 55 N.J. at 6-8. We thoroughly "canvass the record to determine if 'reasonable minds might accept the evidence as adequate to support the jury verdict.'" Klawitter v. City of Trenton, 395 N.J. Super. 302, 324 (App. Div. 2007) (quoting Borngesser v. Jersey Shore Med. Ctr., 340 N.J. Super. 369, 377 (App. Div. 2001)). "'[A] jury verdict, from the weight of the evidence standpoint, is impregnable unless so distorted and wrong, in the objective and articulated view of a judge, as to manifest with utmost certainty a plain miscarriage of justice.'" Doe v. Arts, 360 N.J. Super. 492, 502-03 (App. Div. 2003) (quoting Carrino, supra, 78 N.J. at 360).

There can be no doubt that the Medical Center was under a duty to amend its discovery responses to disclose that Groman was no longer its employee and that he could no longer be contacted through the Medical Center. It also had a duty to disclose Groman's home address. Rule 4:17-7 provides that:

if a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later than twenty days prior to the end of the discovery period as fixed by the track assignment or subsequent order.

The entire purpose of our discovery system is "to ensure an early exchange of information to which the parties are entitled; to relieve an aggrieved party from the burden of having to seek court intervention to compel discovery to which it was entitled; and, to establish consequences for failure to provide discovery as the anticipated rules required." Zadigan v. Cole, 369 N.J. Super. 123, 130-31 (Law Div. 2004).

Counsel for the Medical Center was clearly aware that McHugh was contemplating calling Groman as a witness. He had a duty to disclose the changed information to his adversary prior to the trial, and certainly had such a duty when he received the notice to produce and appeared for trial. "Lawyers have an obligation of candor to each other and to the judicial system, which includes a duty of disclosure to the court and opposing counsel" and discovery abuses should not be tolerated. McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 372-73 (2001).

The Medical Center's attorney was not permitted to retain control over access to Groman by appointing himself gatekeeper for communication between his adversary and Groman. Indeed, Groman, who was described in its interrogatory responses as the Medical Center's "plumber/pipe-fitter," could not properly have been designated a member of the Medical Center's "litigation control group" in the first place. See Rules of Professional Conduct 1.13(a) ("Members of the litigation control group shall be deemed to include current agents and employees responsible for, or significantly involved in, the determination of the organization's legal position in the matter whether or not in litigation, provided, however, that 'significant involvement' requires involvement greater, and other than, the supplying of factual information or data respecting the matter.").

Nevertheless, we are constrained to agree with the trial judge that, on the record before him at the time he decided the motion for a new trial, there was no basis for finding that McHugh was actually prejudiced. McHugh's attorney did not request his adversary to produce Groman to testify. Consequently, this case is not similar to Cohen v. Community Medical Center, 386 N.J. Super. 387, 402 (App. Div. 2006), where we found that that a new trial was warranted because the defendant failed to produce a former employee as a witness on the day of trial. In that case, the plaintiff served a notice in lieu of subpoena on the defendant thirty days prior to trial notifying the defendant that it was required to make its employee, a nurse, available for testimony. Ibid. The defendant never responded and, on the day of trial, informed the plaintiff that the nurse no longer worked for defendant and would not be testifying. Ibid.

On the record then before the trial judge, there was no reason to believe that, had Groman been called as a witness for the plaintiff, his testimony would have been different than that given at his deposition. Consequently, the circumstances of this case are not the same as those in McKenney, supra, 167 N.J. at 372-75, in which the Supreme Court found that a mistrial was warranted when a defense attorney learned the night before trial that a defense witness planned on changing her testimony at trial from what it was during her deposition and failed to disclose that information to the plaintiffs. The Court held that it was an unfair surprise to the plaintiffs and that, as such, the jury's determination could not be viewed with confidence, and that "[f]or plaintiffs to proceed to trial without being informed of the surprise testimony created a 'make believe scenario [for plaintiffs], the legal equivalent of half a deck.'" Id. at 375-76 (internal quotation omitted) (quoting Buckley v. Estate of Pirolo, 101 N.J. 68, 79 (1985)).

Based upon the record before the trial judge at the time of the motion, we affirm the denial of the motion for a new trial.

III.

However, there was a somewhat fuller record before the trial judge on the subsequent motion under Rule 4:50-1. By that time, McHugh's attorney had contacted Groman and learned that his trial testimony might potentially have been more helpful to McHugh than his deposition testimony and that there might be a factual basis for a finding of actual prejudice. The trial judge denied the motion on the grounds that he no longer had jurisdiction because of the pending appeal, relying on Rule 2:9-1.

We agree that the trial court did not have jurisdiction at that time. Nevertheless, the motions should now be decided on its merits. Consequently, we vacate the denial of relief pursuant to Rule 4:50-1 and remand to the Law Division for further proceedings on that motion, including supplementation of the record and any necessary discovery. We express no view on the merits of the motion. We do not retain jurisdiction.

 
Affirmed in part, and vacated and remanded in part.

During cross-examination, McHugh testified that he turned the light on and stepped three to four feet into the room before falling. He originally testified that he slipped in the puddle as he was reaching for the light switch.

McHugh's wife was originally a plaintiff, stating a per quod claim, but she abandoned her claim at the time of trial and is not a party to this appeal.

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A-3092-08T2

March 8, 2010