JOSEPH CARINO v. CHRISTOPHER MUENZEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5491-08T15491-08T1

JOSEPH CARINO, as Administrator

of the Estate of GRACE CARINO,

deceased, and JOSEPH CARINO,

individually,

Plaintiff-Appellant,

v.

CHRISTOPHER MUENZEN, M.D.,

Defendant-Respondent.

 

 

Argued May 26, 2010 - Decided

Before Judges Cuff, Miniman and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-0028-07.

Mitchell J. Makowicz, Jr., argued the cause for appellant (Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte, attorneys; Mr. Makowicz, on the brief).

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

PER CURIAM

Joseph Carino, individually and as the executor of the Estate of his wife Grace Carino, appeals the dismissal of his complaint alleging medical malpractice against defendant Christopher Muenzen, M.D., following a jury verdict of no cause of action. We affirm.

I.

We discern the following factual and procedural history from the record.

A.

On the evening of January 1, 2005, Grace experienced a severe headache. The pain was so intense that she asked Joseph to call 9-1-1, which he did immediately. The emergency medical services (EMS) unit arrived within five to ten minutes. An EMS worker checked Grace's vital signs, which were normal. She had no complaints of dizziness or nausea. Grace did not go to the hospital and apologized for having called 9-1-1, telling the EMS worker that everything was "fine."

The next day, January 2, Grace complained that her headache would not go away. She decided to seek medical treatment. On January 3, 2005, she drove herself to see Muenzen, an internist, whom she had been seeing since November 2004. She had a history of spinal stenosis, a fairly significant form of arthritis.

Grace told a nurse at Muenzen's office about the headache she had on January 1. She initially described it as a sudden and severe headache, all over her head. She had no vomiting, nausea, fever or photophobia. Based on the absence of those symptoms, Muenzen concluded that it was nearly impossible for there to be bleeding in her brain.

When examined by Muenzen, Grace told him that the headache she experienced on January 1 began more mildly, in the front of her head. Muenzen explained at trial that catastrophic headaches start out suddenly, "as if somebody came and whacked you on the back of the head with a baseball bat." According to Muenzen, the fact that Grace's headache started out slowly drew his thinking away from a catastrophic type of headache. The length of time she had the headache was also significant because, with intracranial bleeding, a headache would not go away in fifteen or twenty minutes. Consequently, in Muenzen's mind, Grace's headache was not indicative of a subarachnoid hemorrhage.

Muenzen performed a physical exam, focusing on Grace's neck. She had normal flexion and extension (up and down motion), but decreased range of lateral (rotational) motion. According to Muenzen, the physical exam excluded any meningeal problem, anything dealing with the brain that might affect the tissues that surround the brain and go down into the spinal cord. Grace's decreased range of lateral or rotational motion suggested a "process" in her neck, such as a disc, a bone, or nerve problem.

Muenzen prescribed Mobic, an anti-inflammatory sometimes used to treat migraine headaches. Nausea is a known side-effect of Mobic. He also ordered lab work to rule out conditions such as Lyme disease and temporal arteritis.

Based on Grace's history and his examination, Muenzen made a primary differential diagnosis of migraine. While he had not entirely ruled out a subarachnoid hemorrhage, Muenzen did not discuss that possibility with Grace because it was not "[his] habit to scare somebody with that possibility unless you feel certain that that's what you're dealing with, or unless the next procedure would be to deal with that."

Although low on his differential diagnosis list, Muenzen nevertheless wanted to rule out a subarachnoid hemorrhage because it is potentially fatal. Consequently, he sent Grace for a CAT scan, which he ordered be done "stat" (immediately). Grace drove to Morristown Memorial Hospital, where the CAT scan was performed that day. The CAT scan was negative.

In ruling out a subarachnoid hemorrhage, Muenzen relied on the negative CAT scan, the results of Grace's physical exam, and her history, specifically the fact that her severe headache was preceded by a frontal headache, which was indicative of "a much more benign origin of headache." He did not discuss with Grace the fact that a negative CAT scan is only between ninety-three and ninety-five percent accurate in excluding subarachnoid hemorrhages, nor did he inform her that a spinal tap, a procedure during which spinal fluid is removed from the spinal canal for the purpose of diagnostic testing, would be definitive.

On January 5, Grace still did not feel well. She went to see Muenzen again, and was accompanied by Joseph. She presented with a cough, back pain, ear pain, nausea, photophobia, and generalized body aches. According to Muenzen, the new symptoms drew him further away from a subarachnoid hemorrhage. He had never seen a cough associated with one. And, although nausea and photophobia can be associated with a subarachnoid hemorrhage, both are common with migraines. He did not associate them with a subarachnoid hemorrhage because Grace's headaches were not getting worse, her neck problem was a decreased range of lateral motion rather than flexion and extension, and she was not vomiting.

Muenzen's differential diagnosis on January 5 remained a migraine. He believed the diagnosis was confirmed because Grace's headache was accompanied by mild nausea and mild photosensitivity and also increased with activity, which he described as classic migraine findings.

According to Joseph, Muenzen never mentioned the possibility of bleeding in the brain, a subarachnoid hemorrhage, or the potential of an emergent, life threatening condition. Muenzen did not suggest that Grace go to the emergency room.

Muenzen recommended that Grace follow up with a neurologist, but did not state that there was an urgent need for it. He gave Grace and Joseph a list of four neurologists. Joseph called them right away, but could not get Grace an appointment until January 13. Neither Joseph nor Grace informed Muenzen that they were having trouble getting an appointment, or that the earliest appointment they could get was on January 13.

Muenzen also ordered MRIs of the head and neck. Grace drove to get the MRIs on January 6. The MRI of the neck was performed that day. It revealed a bulging disc at C4 and C5, as well as significant arthritis in the neck. Muenzen called Grace that day with the results. According to Muenzen, those findings were consistent with her neck pain on lateral or rotational motion.

Muenzen also told Grace that she should go back for the second MRI. On January 7, Grace drove herself to get the MRI of her head. The second MRI was negative, as Muenzen advised Grace by telephone.

Muenzen called Grace on Saturday, January 8, to see how she was doing. She reported that she still had a mild headache. He did not ask her if she had seen or made an appointment with a neurologist.

On the morning of January 13, prior to her appointment with the neurologist, Grace lost consciousness and fell face forward to the ground. She was taken to Morristown Memorial Hospital. Upon arrival, she was unresponsive and in a coma. Both a CAT scan and a CT angiogram were performed.

According to Felix Garcia Perez, M.D., the Director of Trauma and Critical Care Services at Morristown Memorial, the CAT scan showed that Grace had two different types of bleeds in the brain; a subdural hematoma and a subarachnoid hemorrhage. He concluded that both bleeds could have been the result of the fall, but added that subarachnoid hemorrhages could occur without trauma. The CAT scan also revealed "that there was pressure over the right side of the brain pushing [against] the left side of the brain, which [is] call[ed] a shift." A CT angiogram performed to determine if there was an aneurysm was inconclusive.

A neurosurgeon performed brain surgery to release the pressure on the brain by removing the subdural hematoma. Grace was admitted to the Neuro Special Care Unit following the surgery. However, her post-operative examinations were consistent with brain death. She was pronounced dead on January 14.

Flores Alfonso, M.D., the pathologist at Morristown Memorial, performed an autopsy. It revealed a ruptured Berry aneurysm, which is a "dilatation" of one of the vessels in the bottom of the brain. The subarachnoid hemorrhage, which was at the base of the brain, resulted from the ruptured aneurysm. The autopsy also showed a subdural hematoma resulting from Grace's fall.

According to Alfonso, the chain of events leading to Grace's death appeared to have been an acute rupture of the Berry aneurysm, which caused the subarachnoid hemorrhage, leading to a loss of consciousness and the fall, with secondary trauma to the head resulting in a subdural hematoma. The cause of death was determined to be foramen magnum herniation, which is a herniation of the hole at the base of the brain through which the spinal cord passes, caused by the intracranial bleeding and related pressure.

Because Alfonso was not concerned at the time of the autopsy about whether there had been bleeding from the aneurysm prior to Grace's fall, he did not perform tests to identify prior bleeding. However, he did not see any signs of prior bleeding.

B.

In January 2007, Joseph filed a medical malpractice action against Muenzen, alleging that he had deviated from accepted standards of medical care in treating Grace. The complaint also alleged that Muenzen failed to provide Grace "with an opportunity of an informed consent." Muenzen filed an answer in March 2007, denying Joseph's allegations of malpractice.

The jury trial started on May 14, 2009. During jury selection, Joseph's counsel began using a laptop computer to access the internet, intending to obtain information on prospective jurors. Defense counsel objected and the following exchange took place:

THE COURT: Are you Googling these [potential jurors]?

[PLAINTIFF'S COUNSEL]: Your Honor, there's no code law that says I'm not allowed to do that. I -- any courtroom -

THE COURT: Is that what you're doing?

[PLAINTIFF'S COUNSEL]: I'm getting information on jurors -- we've done it all the time, everyone does it. It's not unusual. It's not. There's no rule, no case or any suggestion in any case that says --

. . . .

THE COURT: No, no, here is the rule. The rule is it's my courtroom and I control it.

[PLAINTIFF'S COUNSEL]: I understand.

THE COURT: I believe in a fair and even playing field. I believe that everyone should have an equal opportunity. Now, with that said there was no advance indication that you would be using it. The only reason you're doing that is because we happen to have a [Wi-Fi] connection in this courtroom at this point which allows you to have wireless internet access.

[PLAINTIFF'S COUNSEL]: Correct, Judge.

THE COURT: And that is fine provided there was a notice. There is no notice. Therefore, you have an inherent advantage regarding the jury selection process, which I don't particularly feel is appropriate. So, therefore, my ruling is close the laptop for the jury selection process. You want to -- I can't control what goes on outside of this courtroom, but I can control what goes on inside the courtroom.

The judge also considered Joseph's request that he be permitted to argue his "theory" of "lack of informed consent" to the jury. The judge reserved decision, but instructed counsel to refrain from making any reference to that theory in his opening statement.

Joseph testified to the facts outlined above. He presented Paul Lewinter, M.D., a board certified internist, as an expert in the field of internal medicine. Lewinter testified to his opinion that Grace's headache on January 1 qualified as a neurological emergency and that Muenzen should have sent her to the emergency room the first time he saw her. He opined that Muenzen deviated from the accepted standard of medical care by not recognizing Grace's condition as "a neurological life threatening emergency and sending [her] to the hospital immediately and getting a neurologist and getting it handled." According to Lewinter, the "only appropriate way to handle a neurological life threatening emergency is emergently," and "[i]n this case no matter what the CAT scan showed this patient had to go to the emergency room, period."

Lewinter also testified that, although Muenzen appropriately ordered the CAT scan "stat" in order to rule out a subarachnoid hemorrhage, CAT scans are only between ninety-three and ninety-five percent accurate. Consequently, the negative CAT scan did not definitively rule out a subarachnoid hemorrhage. As a result, Lewinter's opinion was that Muenzen deviated from the accepted standard of medical care by assuming that the negative CAT scan from January 3 ruled out a subarachnoid hemorrhage. He testified that a spinal tap is the definitive test to rule out subarachnoid hemorrhage and that Muenzen should have sent Grace to the emergency room so that a neurologist could determine whether one was necessary.

Lewinter further testified that Muenzen's deviations from the accepted standard of medical care were a significant factor in Grace's death.

When Joseph's counsel sought to elicit testimony from Lewinter regarding treatments available for a subarachnoid hemorrhage, Muenzen's counsel objected, arguing that Lewinter had testified at deposition that he was not qualified to form an opinion with respect to treatment because he was not a neurologist or neurosurgeon.

The following exchange took place at Lewinter's deposition:

Q: Let's assume, theoretically, that on January the 6th they were able to . . . determine that Mrs. Carino had a subarachnoid hemorrhage in the Circle of Willis.

A: Yes.

Q: And the treatment would be, in order to try to solve the problem, correct it, would be neurosurgery; is that correct?

A: Depends how you define "neurosurgery." It can be open neurosurgery or the passage of what are called coils to thrombus the aneurysm. That is done through the femoral artery. I guess you would call that "neurosurgery," but it is not open craniotomy neurosurgery.

Q: Is either one of them an appropriate modality of treatment depending on what the neurosurgeon thinks?

A: I'll have to punt on that. I am not a neurosurgeon.

Q: What is the morbidity or mortality in a 66-year old woman, such as Ms. Carino, given her physical state and well-being in January of 2005?

A: I don't know what the literature says, but in my experience it's been a hundred percent successful. I am sure that is not the general experience, but I don't know what the literature says. You have to consult a neurologist.

Q: You don't have an opinion in that regard?

A: That is correct.

After hearing the deposition testimony, the trial judge sustained defense counsel's objection, explaining that

[T]his ruling must rest on the witness's own testimony that . . . it's beyond his experience. He said it in the deposition. He said he could not express an opinion on morbidity. He could not express an opinion on what approach one way or the other would be the way to go. He does know the approaches, that is clear.

However, prior to the objection, Lewinter had testified that proper treatments for a subarachnoid hemorrhage were available at Morristown Memorial in January 2005.

At the close of Joseph's case, Muenzen moved to dismiss Joseph's claim of lack of informed consent. See R. 4:37-2(b). In granting the motion, the judge explained:

I believe that the plaintiff's primary case is inherently contradicted by the informed consent theory. Because the informed consent theory assumes that there are alternative theories of treatment which are valid.

. . . .

This case is far different than an informed decision case, and the proofs have [been presented] in a way entirely inconsistent with an informed decision case. And I can understand why. . . . I believe that the proofs submitted here, when viewed in a light most favorable to the plaintiff do not demonstrate the elements necessary . . . for the claim of informed consent to go forward.

Muenzen testified with respect to his treatment of Grace. Gary R. Weine, M.D., a board certified internist, testified for Muenzen as an expert in the field of internal medicine. He concluded that Muenzen's treatment of Grace did not deviate from accepted standards of medical care. Based on his review of the medical records, he concluded that there was nothing that would make the level of suspicion very high for intracranial bleeding, such as a subarachnoid hemorrhage. He observed that, although Muenzen's notes stated that there was a severe headache, it was preceded by a mild frontal headache. In addition, patients with bleeding usually have nausea and vomiting, and Grace had neither. Nevertheless, Muenzen sent Grace for a CAT scan "stat" to rule out bleeding or a mass.

In light of Grace's history, Muenzen's findings, and the negative CAT scan, Weine concluded that the standard of care did not require Muenzen to send Grace for a lumbar puncture to rule out a bleed, or to refer her to a neurologist for emergent care. He testified that it is rare for physicians to seek a lumbar puncture, which he described as an unpleasant procedure with increased risks for an individual with spinal stenosis, to rule out bleeding after a negative CAT scan. Consequently, he concluded that Muenzen met or exceeded the standard of medical care.

Weine also concluded that Muenzen did not deviate from the accepted standard of medical care on January 5. He also opined that an emergent referral was not required on that date because the nature of the headache had changed, and appeared to be musculoskeletal and cervical in origin. He also testified that Grace's presentation was not consistent with a subarachnoid hemorrhage. She had no focal neurological signs on January 3 and, when she returned on January 5, there was nothing that "would cause a reasonable internist to raise their index of suspicion as to a bleed." In fact, Weine testified that a reasonable physician's suspicion of a bleed would have been very low to begin with because Grace's initial headache was very brief and there were no focal neurological findings. He testified that "a reasonable physician would have eliminated a bleed as causation for [Grace's] headaches."

Weine further testified that the history of all of Grace's headaches would "almost completely eliminate" the diagnosis of a bleed, because a patient with subarachnoid hemorrhage usually has a severe headache that persists "and the second, or maybe the third, event is a massive bleed."

Finally, Weine explained that a physician can miss the proper diagnosis or make the wrong diagnosis and still meet the appropriate standard of medical care.

At the close of the case, Joseph requested the judge to charge informed consent. The request was denied. The judge explained:

My ruling is that this is not an informed consent case. It never was an informed consent case. That the proofs are completely inconsistent with an informed consent case. That your theory of this case is a failure to diagnose, . . . leading directly as a substantial factor in her death. That is your case. And the bottom line [is that] an informed consent case requires options, treatment options. . . . What you're trying to take is some kind of ethical thing, which I don't understand.

On May 27, 2009, a unanimous jury returned a verdict of no cause of action, finding that Muenzen did not deviate from the accepted standard of medical care. On the same date, the trial judge entered an order of dismissal.

This appeal followed.

II.

On appeal, Joseph argues that the trial judge erred in (1) refusing to allow him to present a claim for lack of informed consent to the jury; (2) precluding his attorney from accessing the internet during jury selection; (3) precluding testimony by his expert concerning the available treatments for subarachnoid hemorrhage and their likely outcomes; and (4) giving a flawed charge concerning negligence and causation. He also argues that, even if none of those errors warrant reversal when considered alone, they do so when considered cumulatively. For the reasons set forth below, we affirm the judgment on appeal.

A.

Joseph's first argument on appeal is that the trial judge erred in precluding him from presenting his cause of action for lack of informed consent to the jury. The gist of his argument is that Muenzen was obligated to inform Grace that a subarachnoid hemorrhage was a possible diagnosis, that the negative CAT scan was only a ninety-three to ninety-five percent accurate diagnostic test, and that a spinal tap would be definitive, allowing Grace to decide whether she wished to undergo that procedure after Muenzen explained the relative risks. Muenzen responds that the judge correctly refused to allow the claim to go to the jury, arguing that the lack of informed consent theory was inconsistent with Lewinter's opinion that the standard of care required that Grace be referred to the emergency room immediately so that a neurologist could determine whether a spinal tap was necessary.

The New Jersey Supreme Court has recognized that a patient has three avenues of relief against a physician: "(1) deviation from the standard of care (medical malpractice); (2) lack of informed consent; and (3) battery." Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 545 (2002). "Although each cause of action is based on different theoretical underpinnings, 'it is now clear that deviation from the standard of care and failure to obtain informed consent are simply sub-groups of a broad claim of medical negligence.'" Ibid. (quoting Teilhaber v. Greene, 320 N.J. Super. 453, 463 (App. Div. 1999)).

"A claim based on the doctrine of informed consent is predicated on the patient's right to self-determination." Canesi v. Wilson, 158 N.J. 490, 503-04 (1999). "Choosing among medically reasonable treatment alternatives is a shared responsibility of physicians and patients," and physicians "have a duty to evaluate the relevant information and disclose all courses of treatment that are medically reasonable under the circumstances." Matthies v. Mastromonaco, 160 N.J. 26, 34 (1999). The doctrine of informed consent obligates a doctor to disclose material risks inherent in a procedure or course of treatment so that the patient can make an informed decision. Id. at 36.

The informed consent doctrine does not apply where the claim is that the physician failed to diagnose the patient's condition. See Farina v. Kraus, 333 N.J. Super. 165, 178 (App. Div. 1999) (failure to perform sufficient diagnostic testing), certif. denied, 164 N.J. 560 (2000); Eagel v. Newman, 325 N.J. Super. 467, 474-75 (App. Div. 1999) (failure to take adequate medical history). The doctrine also does not apply when a physician makes an improper diagnosis. Linquito v. Siegel, 370 N.J. Super. 21, 33 (App. Div.), certif. denied, 182 N.J. 143 (2004).

In Linquito, the defendant urologist had failed to diagnose a recurrence of bladder cancer. Id. at 25. The plaintiff's expert testified that he deviated from the accepted standard of care by, among other things, not taking a sample of tissue for biopsy during a cystoscopic examination. Id. at 30-31. The defendant's expert testified that the standard of care did not require that diagnostic test. Id. at 31. Although the jury found no deviation from the standard of care, it found that "defendant 'fail[ed] to inform Arthur Linquito of all the information that a reasonable person in the plaintiff's position would expect a doctor to disclose so that Arthur Linquito might make an informed decision about other diagnostic procedures and a course of treatment.'" Id. at 32.

In reversing, we wrote:

We have previously held that the informed consent theory of liability does not apply where the patient's claim is that the physician erred in diagnosing the patient's condition, either through an alleged failure to obtain an adequate medical history or through an alleged failure to perform a sufficient number or type of diagnostic tests. Farina v. Kraus, 333 N.J. Super. 165, 178-79 (App. Div. 1999) (holding that alleged failure to perform sufficient diagnostic testing); Eagel v. Newman, 325 N.J. Super. 467, 474-75 (App. Div. 1999) (alleged failure to take adequate medical history or to attend to the matter, Judge Pressler stating that "the informed-consent basis of malpractice, as opposed to deviation from the applicable standard of care, rests not upon the physician having erred in diagnosis or administration of treatment but rather in the failure to have provided the patient with adequate information regarding the risks of a given treatment or with adequate information regarding the availability of alternative treatments and the comparative risks of each"). We adhere to those cases. Compare Gilmartin v. Weinreb, 324 N.J. Super. 367, 390 (App. Div. 1999) (citing out-of-state cases holding that informed consent doctrine does not require doctor to advise of alternative diagnoses, but noting it might apply where a specific diagnosis was considered possible by physician but not pursued).
 
Farina concerned whether a urologist negligently diagnosed and treated bladder cancer. In holding that the doctrine of "informed consent" was not applicable, Judge King wrote:

This case before us is not about options for a course of treatment or for surgery but about suitable diagnostic testing. If the doctor wrongly failed to use the cytology test and this led to a diagnostic mistake which adversely affected the outcome, the doctor can be liable. If the standard of reasonable care did not require using the cytology test to aid a diagnosis, then there is no liability here. There is either a deviation, or there is not. A malpractice defendant does not have a duty to discuss every possible non-invasive risk-free diagnostic or laboratory test with a patient and secure a consent to or waiver thereof. The doctor must, of course, use reasonable care and skill in choosing the diagnostic tests and interpreting the results. If he does not, he is vulnerable.

[Farina, supra, 333 N.J. Super. at 179-80.]

In Farina, we also concluded that the trial court's submission of the case on a proper theory of liability (negligent diagnosis/treatment), and an improper theory of liability (informed consent), had "irremediably tainted the jury's special verdicts" for plaintiff on the informed consent theory only. Id. at 177-78, 180 (quoting Ahn v. Kim, 281 N.J. Super. 511, 534 (App. Div. 1995), aff'd, 145 N.J. 423 (1996)). We found the verdict rejecting the negligent diagnosis/treatment theory "was not trustworthy where the balance of the verdict, on the 'informed consent' theory, [suggested that the jury determined] the defendant somehow failed his patient." Id. at 180. We expressed concern that the jury's answers to the questions on the verdict sheet, including the percentage apportionment of damages answers, "smack[ed] of a possible compromise verdict." Ibid.

[Id. at 34-36.]

As we did in Linquito, we decline to extend the informed consent cause of action to situations in which a doctor decides not to pursue a course of diagnostic testing, especially when there is a viable claim that the defendant doctor deviated from the standard of care. See id. at 34-35. Here, as in Linquito, there was a viable, albeit unsuccessful, claim that Muenzen deviated from the standard of care.

Consequently, we hold that Joseph was not entitled to have his informed consent claim presented to the jury, and affirm the trial judge's decision not to do so.

B.

Joseph contends that the trial judge abused his discretion during jury selection by precluding his attorney from accessing the internet to obtain information on prospective jurors. He argues that the trial judge deprived him of "the opportunity to learn about potential jurors . . . one of the most fundamental rights of litigation." Muenzen counters by arguing that the judge did not abuse his discretion.

The purpose of voir dire is to ensure that a fair and impartial jury is empanelled. State v. Williams, 93 N.J. 39, 61 (1983). "'In the absence of a statute or court rule to the contrary, as long as the selection procedure results in a fair and impartial jury, the manner in which a jury is to be selected is properly within the trial court's sound discretion.'" State v. Howard, 192 N.J. Super. 571, 576 (App. Div. 1983) (quoting Turner v. Virginia, 273 S.E.2d 36, 41 (1980), cert. denied, 451 U.S. 1011, 101 S. Ct. 2347, 68 L. Ed. 2d 863 (1981)). A reviewing court must generally accord great deference to the trial judge, who has broad discretion in conducting voir dire. State v. Koedatich, 112 N.J. 225, 274 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989); see also State v. Manley, 54 N.J. 259, 269 (1969) (explaining that New Jersey law vests trial courts with broad discretion in conducting voir dire).

In addition, as we held in State v. Cusumano, 369 N.J. Super. 305, 311 (App. Div.), certif. denied, 181 N.J. 546 (2004):

"A trial judge has the ultimate responsibility to control the trial in the courtroom and is given wide discretion to do so." Horn v. Village Supermarkets, Inc., 260 N.J. Super. 165, 175 (App. Div. 1992), certif. denied, 133 N.J. 435 (1993). The exercise of this authority, however, is circumscribed by the judge's responsibility to act reasonably and within constitutional bounds. Ryslik v. Krass, 279 N.J. Super. 293, 297-98 (App. Div. 1995).

In making his ruling, the trial judge cited no authority for his requirement that trial counsel must notify an adversary and the court in advance of using internet access during jury selection or any other part of a trial. The issue is not addressed in the Rules of Court.

We note, however, that on April 25, 2008, the trial court administrator for the Morris/Sussex Vicinage issued a press release announcing that "wireless internet access" had become available throughout the Morris County Courthouse to "maximize productivity for attorneys" and other court users. The press release quotes the assignment judge as stating that the "courthouse enhancement allows court users" to "access online databases." There is nothing in the press release, or elsewhere as far as we can determine, that requires attorneys to notify the court or opposing counsel in advance of their intention to take advantage of the internet access made available by the Judiciary.

Despite the deference we normally show a judge's discretion in controlling the courtroom, we are constrained in this case to conclude that the judge acted unreasonably in preventing use of the internet by Joseph's counsel. There was no suggestion that counsel's use of the computer was in any way disruptive. That he had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of "fairness" or maintaining "a level playing field." The "playing field" was, in fact, already "level" because internet access was open to both counsel, even if only one of them chose to utilize it.

Nevertheless, we have concluded that Joseph has not demonstrated any prejudice resulting from the trial court's ruling. He has not pointed to a single juror who was unqualified or as to whom he claims he would have exercised a peremptory challenge, even though he has subsequently had the opportunity to perform an internet search concerning each juror. Indeed, inasmuch as jury selection took two days, Joseph's counsel could have researched the prospective juror lists overnight or during breaks, and certainly could have done so before the testimonial portion of the trial started on the third day.

C.

Joseph also argues that the trial judge erred in barring his expert, Lewinter, from testifying about treatments for subarachnoid hemorrhages and the probability of success of such treatments. While conceding that Lewinter was an internist and not a neurosurgeon, Joseph argues that he should have been permitted to testify based on "his knowledge and experience with patients who have been treated for the condition, as based upon his education, training, knowledge and experience as a board-certified internist in practice for nearly fifty years." Muenzen responds that the trial judge's decision was correct because Lewinter himself had testified at deposition that he was not qualified to render an opinion on those issues because he was not a neurologist or neurosurgeon. In addition, Muenzen argues that Joseph suffered no prejudice, even if the testimony should have been allowed, because it was addressed to the issue of causation and the jury did not reach that issue, having concluded that Muenzen did not deviate from accepted standards of medical care.

The admissibility of expert testimony lies in the sound discretion of the trial court. Carey v. Lovett, 132 N.J. 44, 64 (1993); Muise v. GPU, Inc., 371 N.J. Super. 13, 58 (App. Div. 2004). Our scope of review of a trial judge's evidential rulings requires that we grant substantial deference to the judge's exercise of that discretion. DeVito v. Sheeran, 165 N.J. 167, 198 (2000). Rulings on evidence will not provide a basis for reversal unless they reflect a clear abuse of that discretion. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000).

The standard for admissibility of expert testimony is set forth in N.J.R.E. 702:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

In State v. Kelly, 97 N.J. 178, 208 (1984), the Supreme Court held that one of the rule's basic requirements for the admission of expert testimony is "the witness must have sufficient expertise to offer the intended testimony." Expert testimony is not permissible "'if it appears the witness is not in possession of such facts as will enable him to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture.'" Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 299 (App. Div.) (quoting Clearwater Corp. v. City of Lincoln, 277 N.W.2d 236, 241 (Neb. 1979)), certif. denied, 122 N.J. 333 (1990).

Before the objection, Lewinter had testified that there were treatments available for a subarachnoid hemorrhage at the time of Grace's illness, that there was "a very good neurological unit" at Morristown Memorial, and that he would go there if he "had that problem." The objection came when Joseph's counsel started to go into the specifics of treatment. Inasmuch as Lewinter himself testified at his deposition that he was not a neurosurgeon and not qualified to testify about modalities of treatment, we conclude that the trial judge did not abuse his discretion in precluding the testimony. We will not disturb that ruling on appeal. See Carey, supra, 132 N.J. at 64; Little Egg Harbor Twp. v. Bonsangue, 316 N.J. Super. 271, 278 (App. Div. 1998).

In any event, as Muenzen correctly argues, the precluded testimony dealt with the issue of causation and proximate cause, rather than deviation from accepted medical standards. Because the jury never reached causation or proximate cause, any error would be harmless. R. 2:10-2.

D.

Joseph's remaining arguments, that the trial judge gave an inadequate charge and that his cumulative errors warrant a new trial, are without merit and do not warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E).

With respect to the jury charge, we agree that the trial judge's charge with respect to causation was flawed. However, although we are aware that "negligence and causation generally intertwine," Ahn v. Kim, 145 N.J. 423, 434 (1996), we nevertheless conclude that the judge's charge with respect to the issue of deviation from accepted standards of care was correct and not infected by the problems with the remainder of the charge. Proof of a deviation from the standard of care is a necessary element of a malpractice case such as the one before us. Gonzalez v. Silver, 407 N.J. Super. 576, 586 (App. Div. 2009). Because the jury responded to the first question on the verdict sheet by finding that Joseph had not proven that Muenzen deviated from accepted standard of medical care, it necessarily did not reach the issue of causation. Thus, the error with respect to the remainder of the charge was harmless. R. 2:10-2.

Finally, although we have found that the trial judge should have allowed Joseph's counsel to utilize his computer during jury selection and that a part of the jury charge was flawed, we have found no error, whether viewed individually or cumulatively, requiring a reversal of the jury's verdict, which was fully supported by the evidence adduced at trial. See Biruk v. Wilson, 50 N.J. 253, 262 (1967) ("[T]he cumulative effect of small errors may be so great as to work prejudice.").

Affirmed.

 

Because Joseph and his late wife share the same last name, we refer to them by their first names for the sake of convenience.

Joseph also presented a damages expert. Because damages are not at issue in this appeal, we do not summarize his testimony.

(continued)

(continued)

30

A-5491-08T1

August 30, 2010