ESTATE OF PHYLLIS DEGIRONIMO v. HARRY AGRESS, JR M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ESTATE OF PHYLLIS DEGIRONIMO,

by ENRICO DEGIRONIMO, Executor,

and JEAN SWEENEY, Executrix,

Plaintiffs-Appellants,

v.

HARRY AGRESS, JR., M.D.,

STEVEN MEYERSON, M.D., OPEN

MRI OF ROCHELLE PARK, ANDREW

OSIASON, M.D., JOHN DEMERITT,

M.D., and HACKENSACK RADIOLOGY GROUP,

P.A.,

Defendants-Respondents,

and

HACKENSACK UNIVERSITY

MEDICAL CENTER,

Defendant.

April 16, 2014

Argued telephonically April 3, 2014 - Decided

 

Before Judges Reisner, Alvarez and Carroll.

 

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2054-09.

 

Michael B. Zerres argued the cause for appellants (Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte, attorneys; Mr. Zerres, on the brief).

 

Philip F. Mattia argued the cause for respondents Harry Agress, Jr., M.D., Andrew Osiason, M.D., John Demeritt, M.D., and Hackensack Radiology Group, P.A. (Mattia & McBride, attorneys; Mr. Mattia, on the brief).

 

David Parker Weeks argued the cause for respondent Steven Meyerson, M.D. (Ruprecht Hart Weeks & Ricciardulli, attorneys; Mr. Weeks, of counsel and on the brief; Matthew E. Blackman, on the brief).

PER CURIAM

This appeal involves a medical malpractice action brought by plaintiff Phyllis DeGironimo1against defendants, Drs. Harry Agress, Jr., Steven Meyerson, Andrew Osiason, and John Demeritt; Open MRI of Rochelle Park (Open MRI); and Hackensack Radiology Group, P.A. (Hackensack Radiology). Plaintiff alleged that the defendant radiologists deviated from the standard of care by failing to detect and report a lung nodule, which delayed the diagnosis and treatment of plaintiff's atypical carcinoid lung cancer. After a fourteen-day jury trial that was delayed by Hurricane Sandy, the jury entered a verdict of no cause in favor of all defendants.

On appeal, plaintiff claims that the trial court erred by: requiring her liability expert (Dr. Malcolm Friedman) to show diagnostic imaging on a laptop computer instead of a larger television monitor during his videotaped de bene esse deposition; failing to grant her motion for a mistrial or, alternatively, a continuance until Dr. Friedman was available to testify in court; and allowing a defense liability expert to testify beyond the scope of his report. Plaintiff also argues, for the first time on appeal, that she was prejudiced by the two-week court closing between the last day of trial testimony and summations due to Hurricane Sandy. Finding no reversible error in any of the determinations challenged on appeal, we affirm.

I.

We discern the following facts from the trial record. On February 24, 2003, plaintiff went to Hackensack University Medical Center (HUMC) for a preventative coronary artery disease screening due to her sister's then-recent fatal heart attack. Defendant Agress, a board certified diagnostic radiologist, interpreted the limited computerized tomography scan (CT scan)2 on a picture archive communication system (PACS).3 The limited scan only imaged that portion of her chest containing the heart and was done without intravenous contrast.4 Dr. Agress found no lung abnormality, reporting "no acute infiltrate, effusion, or mass."

After a late June 2004 x-ray at the Meadowlands Hospital emergency room for plaintiff's complaint of shortness of breath showed no abnormalities, her primary care physician sent her to Open MRI for a follow-up chest CT scan to rule out a pulmonary embolism.5 Defendant Meyerson, a board certified diagnostic radiologist, interpreted the July 2, 2004, CT scan with contrast on a PACS. No abnormalities were noted except for minimal pleural effusion (i.e., a fluid collection) in the base of plaintiff's left lung which, according to Dr. Meyerson, was "common[]."

The next day, plaintiff was admitted to HUMC through the emergency room, complaining of chest pain and breathing difficulty. A chest CT scan without contrast that captured both conventional and high resolution images was conducted. Defendant Osiason, a board certified diagnostic radiologist, read the CT scan on a PACS. He testified that the PACS typically has a larger screen than a standard laptop computer. As to whether a PACS displays images in a better resolution than a laptop computer, Dr. Osiason stated that "[i]t all depends on your laptop these days." The only pulmonary abnormality Dr. Osiason observed was a pleural effusion in plaintiff's left lung. He did not recommend any follow-up testing because the cause of plaintiff's pleural effusion was unknown and subsequent CT scanning "is not a means to follow" such an abnormality.

On August 26, 2004, plaintiff's chest was CT scanned at HUMC to follow up on the pleurisy in her left lung. Defendant Demeritt, a board certified diagnostic radiologist, interpreted the CT scan without contrast on a PACS. He noted that plaintiff had no pulmonary abnormalities and her left lung pleurisy had resolved. Dr. Demeritt did not review the July 3, 2004, high resolution images.

Several years later, on January 9, 2008, plaintiff was admitted to Holy Name Hospital through the emergency room, complaining of an unrelenting nose bleed, chest pain, and shortness of breath. Dr. Eva Horn, a board certified diagnostic radiologist, read the computed tomography angiography (CT angiogram)6 on a PACS that was conducted that day. While a CT scan typically shows five millimeter x-ray sections (or "slices"), plaintiff's CT angiogram showed 1.25 and 2.5 millimeter slices. While no blood vessel or artery abnormalities were observed, Dr. Horn saw a "[one centimeter] in diameter somewhat spiculated[,] non[-]calcified pulmonary nodule in the right lower lobe" of plaintiff's lung. On a high resolution image, Dr. Horn measured the nodule at 10.6 millimeters. "Spiculated" meant that "there were little lines coming out of" the nodule. Since Dr. Horn believed the nodule's non-calcified and spiculated characteristics suggested potential malignancy, she recommended further investigation.

Plaintiff was again CT scanned at HUMC on March 10, 2008. Dr. Joel Budin, a board certified diagnostic radiologist, read the chest CT scan without contrast on a PACS. According to Dr. Budin, the images on the PACS were displayed on a high resolution monitor, which resolution was sharper than an ordinary laptop or desktop computer. He also reviewed plaintiff's prior chest CT scans from February 24, 2003, July 3, 2004, and August 26, 2004, and saw the same nodule. Dr. Budin concluded that the "[eight by six millimeter] right lower lobe pulmonary nodule . . . ha[d] not changed appreciably" in size and its "stability over a five year interval indicate[d] that . . . it [wa]s benign." The next day, Dr. Budin reviewed plaintiff's January 2008 chest CT scan done at Holy Name Hospital. After comparing it to the most recent March 10, 2008 CT scan, he amended his report to reflect his belief that the nodule had increased.

On March 24, 2008, plaintiff had a right lower lung lobectomy to remove the nodule and surrounding tissue. Post-surgical biopsies revealed that the tumor was cancerous. Plaintiff was diagnosed with stage three A atypical carcinoid lung cancer.

Post-surgery, plaintiff received four or five chemotherapy treatments and thirty days of radiation treatment until August 2008. Resulting side effects included hair and memory loss, nausea, and confusion. During the subsequent two years, she had periodic CT scans, x-rays, and blood testing to detect recurrence. As of trial, the cancer had not recurred.7

The medical experts who testified at trial disagreed as to whether the radiologists deviated from the appropriate standard of care when they failed to detect and report plaintiff's lung nodule in 2003 and 2004. The experts also disagreed as to whether plaintiff's prognosis was altered by the failure to detect and report the nodule at those times.

Because Dr. Friedman, plaintiff's diagnostic radiologist expert, was scheduled to leave on a trip shortly after the trial commenced, his testimony was recorded during his de bene esse deposition and subsequently presented to the jury. Just before the start of Dr. Friedman's deposition, which was conducted after jury selection was completed, counsel for all defendants objected to the proffered use by plaintiff's counsel of a forty-inch television monitor to display plaintiff's diagnostic imaging. Defense counsel argued that such a display was unfairly prejudicial because defendants had initially viewed the imaging on a smaller monitor. After the parties discussed the issue with the trial judge via telephone, she sustained defendants' objection. Plaintiff's counsel then moved for a mistrial so that Dr. Friedman could testify in court. The judge denied the motion. Later during the same discussion, counsel for all defendants suggested a two-week continuance, which the court also denied.

During his ensuing de bene esse deposition testimony, Dr. Friedman displayed images from several CT scans of plaintiff on a laptop computer and explained what they showed, which the videographer recorded. He explained that plaintiff's CT scans had been reviewed by each respective diagnostic radiologist on a PACS, which "usually [was the size of] a desktop computer monitor." During Dr. Friedman's initial review of the February 2003 scan, he neither looked for nor found any nodules since he had no expertise in detecting coronary artery disease. After he reviewed the subsequent July 2, 2004 scan and identified the nodule, he reviewed the February 2003 scan again and detected it

on images twenty-nine through thirty-two, pointing to it with the computer mouse arrow and circling it. In contrast to air in the lungs, which appeared black on the images, the nodule as well as blood vessels appeared white.

Dr. Friedman also reviewed the July 2004 CT scans and referred to those images during his testimony. On the July 2 scan, Dr. Friedman identified the nodule at image sixty-six, circled it, described that it was located "between . . . two blood vessels," and measured its "long axis" as six millimeters. On the July 3 scan, he identified and circled the same nodule at conventional image thirty-seven and high resolution images eighteen and nineteen. The nodule was seven-by-six millimeters on the conventional image, and seven-by-seven millimeters on the high resolution images. With respect to the latter, Dr. Friedman pointed to the nodule's spiculation, stating it was "very subtle."

Dr. Friedman additionally reviewed the August 2004 CT scan and identified the nodule at image thirty-six. It was eight-by-six millimeters. He testified that the nodule on all of the 2003 and 2004 CT scan images appeared "subtle" because it was "relatively small[] and there [were] many things . . . of a similar size, such as blood vessels." With respect to the 2008 CT scans, Dr. Friedman testified the nodule was eleven-by-nine millimeters in January 2008 and eleven-by-eight millimeters in March 2008.

In Dr. Friedman's opinion, Drs. Agress, Meyerson, Osiason, and Demeritt deviated from what reasonably prudent radiologists reviewing plaintiff's CT scan images would have done, which should have included reporting the nodule and recommending further testing to monitor its size. He testified that "studies . . . show that the majority of nodules probably would be seen over [four] millimeters or 4[.5] millimeters." He also referenced a 1999 textbook he relied upon in rendering his opinion, entitled Computed Tomography and Magnetic Resonance of the Thorax by Dr. David P. Naidich (Naidich) and other doctors.

With respect to the location of plaintiff's nodule, Dr. Friedman stated it fell within Naidich's definition of the central portion of the lung. Also, according to Dr. Friedman, the nodule was near a blood vessel, which may have made its detection more difficult depending upon the respective sizes of the nodule and vessel. He further reported Naidich's finding that nodules that either overlapped or were superimposed on blood vessels were detected 32.5% of the time, while nodules with no observable relationship to blood vessels were detected 65.6% of the time. Dr. Friedman did not believe plaintiff's nodule overlapped or was superimposed on a blood vessel.

Regarding the change in size of plaintiff's nodule, Dr. Friedman characterized its growth as "modest" between 2003 and 2008. Specifically, he thought that it did not appreciably increase from February 2003 to July 2004, and he similarly detected no significant growth between July and August 2004. He also quoted Naidich's textbook and the 2000 American College of Radiology Appropriateness Criteria, stating that the absence of a pulmonary nodule's detectable growth over a two-year period is a reliable criterion for establishing that it is benign.

Dr. Charles White testified as Drs. Agress's, Osiason's, Demeritt's and Hackensack Radiology's expert in diagnostic radiology. Dr. White reviewed plaintiff's February 2003, July 3, 2004, August 2004, and March 2008 CT scans. While he did not initially detect the nodule, he found it "[a]fter several looks." He did not observe any spiculation.

Dr. White displayed the 2003 and 2004 CT scan images to the jury on his laptop computer, which he believed simulated the size of a PACS. He pointed to the nodule on the February scan at image twenty-nine, on the July scan at conventional image thirty-seven and high resolution image eighteen, and the August scan at image thirty-six. With respect to the February image, Dr. White identified the nodule "in the midst of four or five different [blood] vessels, all of which look kind of the same." Likewise, the nodule on the July and August images was surrounded by blood vessels. In his opinion, based upon Dr. Friedman's measurements, the nodule did not appreciably increase in size from February 2003 to August 2004.

Dr. White opined that Drs. Agress, Osiason, and Demeritt did not deviate from what reasonably prudent radiologists reviewing plaintiff's CT scan images would have detected and reported. He explained that it was commonplace for small nodules less than one centimeter, like plaintiff's, not to be detected. Moreover, its lack of density and its location near "a bunch of [blood] vessels" also inhibited its detection.

Dr. White additionally discussed a January 2004 article he had published in the Journal of Thoracic Imaging, entitled "Pitfalls in Lung Cancer Assessment With CT." This article documented a lung cancer screening study of thirty-nine patients. The undetected nodules that were subsequently determined to be cancerous averaged twelve millimeters.

Dr. White also commented on the Naidich simulated study that Dr. Friedman testified about, stating the study was "artificial" because it "involved putting nodules electronically in" the CT scan images and the readers were instructed to look for lung cancer. Moreover, half of the simulated nodules differed from plaintiff's in that they were "fairly dense," which increased the likelihood of detection. Also, the readers were "presumably" given more time to review the scans as compared to typical practicing radiologists.

Dr. William Matuozzi testified as Dr. Meyerson's diagnostic radiology expert. He reviewed all of plaintiff's CT scans. At trial, using his son's laptop computer, he pointed to and circled the nodule on the July 2, 2004, scan at image sixty-six. He estimated its size "in the six or seven millimeter range." He also identified nearby areas of "branching blood vessels" and adjacent "densities that look[ed] like nodules." In his opinion, Dr. Meyerson did not deviate from the applicable standard of care because the nodule's central placement in the lung near "other structures," including "multiple blood vessels of very close to the same size," made it difficult to detect.

Also on the same laptop computer, Dr. Matuozzi identified the nodule on the February 2003, July 3, 2004, and August 2004 scans, stating it appeared near a cluster of blood vessels. Aware that Dr. Friedman believed the July 3 high resolution images appeared spiculated, Dr. Matuozzi reviewed those images for spiculation, finding none.

Additionally, Dr. Matuozzi measured the nodule and perceived no change in its size on the February 2003, July 2004, August 2004, and March 2008 CT scans. Dr. Matuozzi further testified that a PACS has magnifying capability, and a larger screen and better resolution than a standard laptop computer.

A two-week delay ensued between the last day of trial testimony on October 25, 2012, and summations of counsel on November 13, 2012, caused by Hurricane Sandy. On November 14, 2012, after deliberating during a full morning session, the jury returned a unanimous verdict for defendants, finding that they had not deviated from the applicable standard of care. The no cause judgment was memorialized on November 26, 2012. This appeal followed.

II.

We begin with a recognition of the fundamental principle that jury trials are a bedrock part of our system of civil justice and that the factfinding functions of a jury deserve a high degree of respect and judicial deference. See, e.g., Caldwell v. Haynes, 136 N.J.422, 432 (1994). In terms of its assessment of the relative strength of the proofs, a jury verdict 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 v. Novotny, 78 N.J.355, 360 (1979)). Jury verdicts are thus "entitled to considerable deference and 'should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice.'" Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J.506, 521 (2011) (quoting Baxter v. Fairmont Food Co., 74 N.J.588, 597-98 (1977)); see alsoBoryszewski v. Burke, 380 N.J. Super.361, 391 (App. Div. 2005) ("Jury verdicts should be set aside in favor of new trials only with great reluctance, and only in cases of clear injustice."), certif. denied, 186 N.J.242 (2006).

A.

We first consider plaintiff's claim that the court committed reversible error by prohibiting Dr. Friedman from displaying plaintiff's CT scan images on a forty-inch television monitor while his de bene esse deposition was being videotaped. Judge Rachelle Harz permitted Dr. Friedman to display the images on a fifteen-inch computer laptop which, plaintiff claims, did not sufficiently duplicate the manner in which defendants initially viewed the images on a high resolution PACS and unfairly prejudiced the jury in favor of defendants.

As noted, immediately prior to the start of Dr. Friedman's de bene esse deposition on October 12, 2012, counsel for all defendants objected to plaintiff's proffered use of an approximately forty-inch television monitor to display plaintiff's diagnostic imaging. Defense counsel argued that the proposed display was unfairly prejudicial because it was "much larger than the image[s] would have been" viewed when defendants interpreted them. Plaintiff's counsel responded that defendants had viewed the images on a PACS "that [was] actually bigger than this laptop screen." Counsel further stated:

If Dr. Friedman were able to appear live in court, I would have him use the laptop with the Court's permission and have the jurors come up, and he could demonstrate his findings or what he observes on the laptop. Since I'm not able to do that and because this is being videotaped, which itself makes things smaller than they would be if we were

in court, the only way I think to fairly communicate his opinions about what he sees is by doing it this way.

 

Judge Harz sustained defendants' objection, analogizing to the circumstances presented in Rodd v. Raritan Radiologic Associates, P.A., 373 N.J. Super. 154 (App. Div. 2004). She suggested that while the images were displayed on the fifteen-inch laptop computer screen during the deposition, the videographer could record the screen while Dr. Friedman pointed to the images. The judge also asked whether defendants had initially viewed the CT scans on a computer monitor, to which plaintiff's counsel responded "[t]hat's my understanding."

Defense counsel were further concerned about the recorded images being displayed later to the jury on a television monitor larger than a laptop screen. The judge suggested playing the deposition at trial on a television monitor similar in size to the laptop monitor (i.e., fifteen inches) and volunteered to supply it.

Plaintiff's counsel reiterated that if Dr. Friedman testified in court, he would have him "look at [the images] on a laptop and then ask the Court to allow the jurors if they want to take a closer look at what he's showing." In response, the judge stated that her proposed method, having the videographer zoom in on the images displayed on the laptop computer and then showing them in court on a fifteen-inch monitor, was analogous to plaintiff's proposed in-court method.

During trial, Dr. Friedman's de bene esse deposition was displayed on a laptop computer supplied by plaintiff's counsel. The CT scan images that captured the lung nodule, which Dr. Friedman referred to by number, occupied the entire laptop screen. During his recorded testimony, Dr. Friedman pointed to the nodule multiple times on different images. With respect to the July 3 high resolution images, he also pointed to its spiculation.

Plaintiff's proposed display of the images on a larger television monitor to ameliorate the alleged decrease in clarity caused by the recording of Dr. Friedman's testimony falls within the category of demonstrative evidence. See Rodd, supra, 373 N.J. Super. at 165 (internal citations omitted) (defining demonstrative evidence as that which "replicates the actual physical evidence, or demonstrates some matter material to the case, or illustrates certain aspects of an expert's opinion").

In general, the trial court enjoys wide latitude in admitting or rejecting replicas, illustrations and demonstrations and in controlling the manner of presentation and whether or not particular items are merely exhibited in court or actually received in evidence. That is, the trial court controls not only the admission of this type of evidence, but also the form and limits of its presentation, as well. Although discretionary, the admissibility of such evidence turns, in part, on whether it sufficiently duplicates the original event.

 

[Id. at 165 (internal citations and quotation marks omitted).]

 

In Rodd, supra, plaintiff's estate brought a medical malpractice action against defendant Kotler, a radiologist, and his radiology clinic, for failure to detect plaintiff's breast cancer when interpreting her mammography screenings. For use at trial, plaintiff digitally scanned select portions of the mammograms into a computer to produce super-magnified images, which were then projected onto a six-foot by eight-foot screen for the jury to view. Id. at 160. Defendants objected, citing the potential for distortion and confusion. Id. at 161. Despite this objection, the trial judge allowed the use of the large screen computer projections, explaining that such demonstrative evidence would aid the jury. Id. at 162.

Following a $3,240,000 adverse jury verdict, defendants appealed. We reversed, holding that computer-generated, super-magnified diagnostic imagery is not admissible when such demonstrative evidence does not accurately portray the original, unenhanced evidence. Id. at 167-71. Specifically, we noted:

Of course, the issue was not whether the calcification clusters could be viewed in a super-magnified computer image, but whether defendant deviated from the accepted standard of care when he concluded that which he viewed on the x-rays was not suspicious of cancer. In other words, computerized magnification was not the mechanism used by radiologists following the standard of care recognized in the medical community, which was, indisputably, to view the mammogram with a 2.5 power magnifying lens. However, the use of computerized images to demonstrate that a cancerous cluster existed on the mammogram films and was so "clearly visible" that it should have been detected by defendant had the clear potential to confuse the jurors and distract them from assessing defendant s action under the correct standard of care. The danger here was that the jury could assume that defendant should have used the computer technology being presented at trial, despite the absence of any evidence of a medical consensus that the images in a mammogram are accurate where the x-ray is scanned into a computer, blown up, and projected on a large screen. As such, the "demonstration" did more than simply illustrate expert testimony. It provided the jury with testimonial evidence--independent proof--of that which could and should have been seen by defendant using the standard hand-held magnifying glass used to interpret mammograms.

 

[Id. at 168.]

 

Here, the trial court properly prohibited Dr. Friedman from displaying plaintiff's CT scan images on a forty-inch television monitor during his deposition because, as Rodd instructs, such a display would not have accurately portrayed the images as defendants had viewed them. Indeed, plaintiff's counsel told the court that defendants had viewed the images on computer-sized monitor screens when they read them. Thus, a display of the images on a larger screen could have potentially confused the jury into believing that was how defendants had viewed the images. See id. at 167.

Plaintiff claims that such potential for confusion did not exist because she intended to show the jury the enlarged images on a smaller, fifteen-inch monitor, which "would have been sufficiently more comparable to the images originally reviewed by the defendants on their high resolution monitors." However, showing the enlarged images on a smaller screen would not have mitigated the prejudice because the images would still have appeared enlarged, which would not have "sufficiently duplicate[d]" how defendants initially viewed them.

Plaintiff additionally contends that the reduced resolution "ma[de] the nodule more difficult to identify." We disagree, as the video demonstrated that Dr. Friedman had clearly identified the nodule by circling it on multiple images.

Viewing the evidence as a whole, as we must, we discern no basis to disturb the jury verdict based on the method and manner in which the images were displayed to the jury. Besides the CT scan images, there was ample evidence suggesting that defendants did not deviate from the applicable standard of care. Dr. Friedman made critical admissions, testifying that the nodule appeared small and was located near many blood vessels. He cited a study finding that nearly half of lung nodules like plaintiff's in the central lung region go undetected. Moreover, he conceded that he found no nodule during his initial review of plaintiff's February 2003 CT scan. Both Drs. White and Matuozzi explained that the nodule's small size, lack of density, and location near blood vessels made it virtually undetectable in 2003 and 2004. We are thus satisfied that the evidence was such that the jury could reasonably have found that defendants did not deviate from the accepted standard of care.

B.

Plaintiff next contends that the court erred by denying her motion for a mistrial or, in the alternative, a continuance until Dr. Friedman could testify in court. We disagree.

During the court's discussion with counsel about how plaintiff's CT scan images would be displayed at Dr. Friedman's de bene esse deposition, plaintiff's counsel requested a mistrial, representing that the parties had "discussed that amongst [them]selves . . . as a possibility." The judge denied the request. Later during the same discussion, counsel for all defendants suggested a two-week continuance so that Dr. Friedman could testify in court.8 The judge denied the request, stating she had subsequent scheduling conflicts.

The decision to grant a defendant's motion for a mistrial rests within the sound discretion of the trial court. State v. Harris, 181 N.J.391, 518 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The standard is

whether or not the error is such that manifest injustice would result from continuance of the trial and submission of the case to the jury. The consideration of the mistrial motion, however, has one additional element, namely the court's determination of whether or not the prejudice resulting from the error is of a nature which can be effectively cured by a cautionary instruction or other curative steps.

 

[Pressler & Verniero, Current N.J. Court Rules, comment 5.1 on R. 3:20-1.]

The grant of a mistrial is an extraordinary remedy that should be exercised only to prevent manifest injustice. State v. Ribalta, 277 N.J. Super.277, 291 (App. Div. 1994), certif. denied, 139 N.J.442 (1995).

Similarly, the granting or denial of an adjournment is committed to the discretion of the trial judge. Kosmowski v. Atl. City Med. Ctr., 175 N.J.568, 575 (2003). Our courts have long and consistently held to the general standard of review that an appellate court will reverse for failure to grant an adjournment only if the trial court abused its discretion, causing a party a "manifest wrong or injury." State v. Hayes, 205 N.J. 522, 537 (2011). "Calendars must be controlled by the court, not unilaterally by [counsel], if civil cases are to be processed in an orderly and expeditious manner." Vargas v. Camilo, 354 N.J. Super. 422, 431 (App. Div. 2002), certif. denied, 175 N.J. 546 (2003).

As plaintiff correctly notes, only jury selection had been completed at the time she moved for a mistrial and/or sought a continuance. Nevertheless, the trial date had already been adjourned three times, dating back to May 2011. Hence, in July 2012, the court set October 9, 2012, as "[t]he firm trial date." In doing so, the court allowed sufficient time for Dr. Friedman to change his travel plans or, alternatively, for plaintiff to secure his de bene esse deposition.

Moreover, plaintiff was not unduly prejudiced. The jury heard and saw Dr. Friedman's videotaped de bene esse deposition testimony, and thus plaintiff was not deprived "of the benefit of independent expert medical testimony" altogether. See Westphal v. Guarino, 163 N.J. Super. 139, 148 (App. Div.), aff'd o.b., 78 N.J. 308 (1978); see also R. 4:14-9 (allowing videotaped deposition of expert witness); R. 4:16-1 (allowing videotaped deposition of expert witness at trial in lieu of testimony). Plaintiff has therefore failed to demonstrate that the court abused its discretion here.

C.

Plaintiff next argues that the trial court erred by allowing Dr. White to testify about (1) two articles that he authored, (2) an article authored by Naidich, (3) the location of plaintiff's lung nodule and its size, and (4) the protocol of radiologists in reporting diagnostic findings. According to plaintiff, that testimony exceeded the scope of Dr. White's report and his deposition testimony.

Trial court decisions regarding the scope of expert testimony are reviewed for an abuse of discretion. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008); see also R. 2:10-2, cmt. 4.7(b).

N.J.R.E. 702 governs evidential challenges concerning the scope of expert testimony, providing:

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.

 

While an expert witness may be confined to the opinions contained in his or her report provided in discovery, Conrad v. Robbi, 341 N.J. Super. 424, 440-41 (App. Div.), certif. denied, 170 N.J. 210 (2001), "the logical predicates for and conclusions from statements made in [an expert] report are not foreclosed." McCalla v. Harnischfeger Corp., 215 N.J. Super. 160, 171 (App. Div.), certif. denied, 108 N.J. 219 (1987).

In addition, "when the testimony in question is 'pivotal' to the case of the party offering the testimony, a court should seek to avoid exclusion where possible." Wymbs v. Twp. of Wayne, 163 N.J. 523, 544 (2000) (quoting Thomas v. Toys "R" Us, Inc., 282 N.J. Super. 569, 582 (App. Div.), certif. denied, 142 N.J. 574 (1995)). Factors that "strongly urge" against exclusion of otherwise admissible expert testimony because of discovery violations are "'(1) the absence of a design to mislead, (2) absence of the element of surprise if the evidence is admitted, and (3) absence of prejudice which would result from the admission of the evidence.'" Conrad, supra, 341 N.J. Super. at 441 (quoting Westphal, supra, 163 N.J. Super. at 146.

Guided by these principles, we discern no error in the trial court's decision to allow Dr. White's testimony about two articles he authored, the location of plaintiff's lung nodule and its size, and the protocol of radiologists in reporting diagnostic findings. Not only was such testimony addressed during Dr. White's deposition, his testimony about the location of plaintiff's lung nodule and its size was also covered in his report. Similarly, Judge Harz properly allowed Dr. White's testimony about the Naidich article because plaintiff's counsel had opened the door to this medical literature by questioning her liability expert, Dr. Friedman, about it.

D.

For the first time on appeal, plaintiff argues that she was prejudiced by the two-week court closing between the last day of trial testimony and summations, caused by Hurricane Sandy. Because plaintiff failed to raise this argument below, we need not decide it on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); Monek v. Borough of S. River, 354 N.J. Super. 442, 456 (App. Div. 2002). Moreover, nothing in the record supports plaintiff's speculative contention that she was prejudiced by the delay.

Affirmed.

1 Plaintiff has since passed away, and her Executor and Executrix, Enrico DeGironimo and Jean Sweeney, have been substituted in her stead. For purposes of this opinion, plaintiff shall be understood to refer to Phyllis DeGironimo.

2 A CT scan "imag[es] anatomic information from a cross-sectional plane of the body, each image generated by a computer synthesis of x-ray transmission data obtained in many different directions in a given plane." Stedman's Medical Dictionary 1996 (28th ed. 2006).

3 A PACS is "a computer network for digitized radiologic images and reports." Stedman's Medical Dictionary 1404 (28th ed. 2006).

4 Intravenous contrast enhances the ability to see certain structures on a CT scan.

5 Dr. Meyerson defined a pulmonary embolism as "[blood] clots . . . mostly . . . from the legs . . . [that] travel up through the heart . . . into the main pulmonary [artery] and its branches."

6 A CT angiogram is a "computer-processed angiogram made from a series of CT images after injection of a contrast medium intravenously[.]" Stedman's Medical Dictionary 86 (28th ed. 2006).

7 We are informed that plaintiff died from lung cancer with metastasis to her bones on December 13, 2013, about a year after the trial ended.

8 According to plaintiff, Dr. Friedman departed to India after October 12 for two-and-a-half weeks.