DORIS FALCON et al. v. DANIEL RICE, M.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5405-05T55405-05T5

DORIS FALCON and EFRAIN MIRANDA,

Plaintiffs-Respondents,

v.

DANIEL RICE, M.D.,

Defendant-Appellant.

__________________________________

 

Argued: September 10, 2007 - Decided:

Before Judges Lisa, Lihotz and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, L-3629-03.

Patricia M. McDonagh argued the cause for appellant (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Joseph A. Manning, of counsel; Ms. McDonagh, on the brief).

Roy J. Konray argued the cause for respondents (Tobin, Koster, Oleckna, Reitman, Greenstein & Konray, attorneys; Mr. Konray, of counsel and on the brief).

PER CURIAM

Plaintiff, Doris Falcon, brought this medical malpractice action against defendant, Dr. Daniel Rice, claiming that he deviated from the accepted standard of medical care in connection with an operative procedure to remove an obstruction in her ureteropelvic junction. During the procedure, defendant severed plaintiff's right renal artery, which led to the loss of her right kidney.

The jury returned a verdict of no cause for action. However, finding that the verdict was against the weight of the evidence, Judge Graziano granted plaintiff's motion for a new trial, and we denied leave to appeal. Defendant moved for Judge Graziano to recuse himself from presiding over the retrial. The motion was denied, and we again denied leave to appeal.

At the retrial, plaintiff prevailed. The jury awarded her $1,200,000, and awarded her husband $25,000 on his per quod claim. Defendant's post-trial motions for judgment notwithstanding the verdict, a new trial, or remittitur were denied. On May 9, 2006, judgment was entered against defendant in accordance with the verdict, including prejudgment interest, in the amount of $1,255,627.03 in favor of plaintiff and $26,107.60 in favor of her husband.

Defendant appeals from four orders: (1) the December 23, 2005 order granting a new trial; (2) the February 17, 2006 order denying defendant's recusal motion; (3) the May 12, 2006 order denying defendant's motions for judgment notwithstanding the verdict, a new trial or remittitur; and (4) the May 9, 2006 order entering judgment in favor of plaintiff and her husband based upon the jury verdict in the second trial.

Defendant argues that the judge erred in granting a new trial because, viewing the evidence at the first trial in the light most favorable to defendant, the no cause verdict was supported by the evidence and did not result in a manifest miscarriage of justice. Accordingly, defendant argues that the no cause for action verdict should be reinstated. Defendant further argues that the judge should have recused himself from presiding over the retrial because comments he made in support of his decision granting plaintiff a new trial created at least the appearance of bias, prejudice or partiality in favor of plaintiff. Finally, defendant argues that the judge mistakenly exercised his discretion in denying defendant's post-trial motions following the second trial. He contends he was entitled to a judgment notwithstanding the verdict or a new trial because of various erroneous evidentiary rulings and because plaintiff failed to meet her burden of proof that defendant deviated from the accepted standard of medical care. Alternatively, he argues that the verdict was excessive and against the weight of evidence and the trial judge erred in denying his motion for remittitur. We reject these arguments and affirm.

The surgical procedure that is the subject of this litigation took place on June 3, 2002. At that time, plaintiff was forty-one years old. Analysis of the medical issues in this case requires consideration of plaintiff's pertinent medical history and a prior operative procedure she underwent in 1995.

Plaintiff had a congenital abnormality consisting of a narrowing in her right ureter, the muscular tube that carries urine from the right kidney to the bladder. The renal pelvis is a portion of the kidney where urine collects before it is pushed down the ureter. The location where the kidney meets the ureter is called the ureteropelvic junction (UPJ). The obstruction in that portion of the ureter is known as a ureteropelvic junction obstruction (UPJO). The obstruction consists of scar tissue, results in a tightening of the ureter, and does not allow urine to pass normally.

As a result of this condition, plaintiff underwent an open surgical procedure in 1995, which was performed by Dr. Steven Alexander. In that procedure, known as a dismembered pyeloplasty, cross cuts are made above and below the narrowing, completely severing the ureter. The narrowed area causing the obstruction is removed, and the two ends are sutured back together. This procedure results in some distortion of the normal anatomy. Sometimes the surgeon will transpose blood vessels from one side of the ureter to the other when reattaching the ureter. And, postoperatively, the formation of new scar tissue around the surgical site is expected, and that scar tissue can further cause dislocation of blood vessels from their normal locations.

Some time after the 1995 procedure, Dr. Alexander retired and turned over his files to defendant. In 1997, as a result of recurring discomfort in the area of her right kidney, plaintiff came under defendant's care. Her symptoms continued to worsen, and by 2002 defendant concluded that the obstruction recurred, which is apparently not uncommon. Defendant recommended surgery to remove the obstruction.

The 1995 operation was a "primary" UPJO removal procedure, meaning it was the initial such procedure. The surgery to be performed in 2002 would be a "secondary" UPJO removal procedure, meaning a procedure performed at the same site as an earlier such procedure. The difference is medically significant. Because of the distortion of the normal anatomy caused by the primary UPJO removal procedure and by the subsequent formation of new scar tissue, the surgeon performing a secondary UPJO removal procedure must ascertain the location of major blood vessels in the surgical field, which may not be in their normal location. This is necessary to avoid severing a major blood vessel during the secondary UPJO removal procedure.

Defendant chose to perform a closed procedure, known as an endopyelotomy. By this technique, the surgeon uses an instrument to enter the urethra, which is further inserted through the bladder and the ureter to the point of the obstruction. A cut is then made with the instrument. A stent is then temporarily placed at that location with a string attached. About two to three weeks later, after healing, the stent is removed in the doctor's office by pulling the string.

More particularly, defendant chose to perform a cutting current endopyelotomy, which utilizes an electric current being passed through a wire, which serves as the cutting device, making a sharp incision through the layers of the ureter. Fluoroscopic guidance, a form of real-time x-ray technology, is used during the procedure. This allows the surgeon to visualize the location of the cutting wire as it is placed in position to make the cut. However, blood vessels cannot be seen with the fluoroscopic guidance. Thus, the cut is made "blind," because it is without visualization of blood vessels.

An alternate closed procedure was available, by which a laser device, rather than an electric wire cutting device, is used to make the cut. With that procedure, a miniature camera is inserted along with the laser, and the surgeon can visualize on a monitor the presence and location of blood vessels in the area. Thus, using that technique, the cut is not blind.

Defendant chose to use an Acucise device. Defendant had never previously used an Acucise device in performing a secondary UPJO removal procedure. The Acucise device consists of a catheter that is placed up through the urethra, then across the bladder and into the ureter. At the end of the catheter, there is a balloon with an electric wire running lengthwise on one side of it. When the balloon and cutting wire are positioned inside the area of the ureter containing the obstruction, electric current is applied and the wire cuts the ureter lengthwise at that location.

Because the surgeon cuts blindly using this device, the manufacturer provides a product insert with instructions for use, which advises the performance of certain imaging studies to locate blood vessels prior to performing a secondary UPJO removal procedure. In particular, the insert states:

FOR SECONDARY UPJO, it is recommended that a spiral CT or endoluminal ultrasound be conducted in order to determine the appropriate positioning of the cutting wire. If this is not possible, the cutting wire should be positioned in a straight posterior position provided the original operative note was reviewed and does not describe a dismembered pyeloplasty with posterior transposition of anterior crossing vessels.

Defendant performed the surgery on June 3, 2002. He did not obtain a spiral CT scan or endoluminal ultrasound preoperatively. In making the blind cut, defendant inadvertently cut plaintiff's renal artery, a major artery that branches out of the aorta into the upper pole of the kidney. Profuse hemorrhaging occurred. Plaintiff was moved to a standard operating room for an emergency laparotomy, by which she was opened up to permit visualization of her internal anatomy. Defendant was assisted in this procedure by a cardiac surgeon. They observed the severed renal artery and were unable to sew it back together. As a result, as a lifesaving measure, the doctors removed plaintiff's right kidney and stopped the bleeding. In addition to the loss of the kidney, plaintiff was left with substantial residual surgical scars.

At the first trial, plaintiff presented Dr. Eric Kreutzer, an expert in urology. Dr. Kreutzer was experienced in using the Acucise device and had used it prior to June 3, 2002. Dr. Kreutzer was licensed to practice medicine in New York, and he maintained a urological practice in New York City. He was not licensed in New Jersey.

Dr. Kreutzer opined that when an Acucise-type procedure or cutting current endopyelotomy was performed in 2002, if it was a secondary UPJO removal procedure, the standard of care required a preoperative imaging study "in order to be sure about where the blood vessels would be prior to initiating the procedure." He said this could be accomplished by use of a spiral CT scan, an endoluminal ultrasound, or with MRI imaging.

When asked whether this was a New York standard, where he practiced, or a nationwide standard of care, Dr. Kreutzer responded, "I assume it's a nationwide standard of care." Plaintiff's counsel then admonished Dr. Kreutzer that he should not assume, and proceeded to ask further questions on the subject. In response, Dr. Kreutzer explained the basis for his opinion that this was a nationally accepted standard of care. He attended and lectured at national conventions, the Acucise device is manufactured and sold across the United States, and formal training for the device was available, which he had attended. He expressed the view that the manufacturer's insert recommending the preoperative imaging studies was consistent with the applicable standard of care. He did not contend that the manufacturer's insert was the basis for the standard of care. Further, he commented that the Food and Drug Administration (FDA) must approve instructions contained in such inserts when a new product is authorized for general medical use. However, he did not contend that the FDA established the standard of care. He adhered to the position that the standard of care is established by doctors, stating that "in general if you want to find out what the standard of care is, then you talk to the people who are writing about it or researching it or working directly with the manufacturers who produce the equipment." He then identified the California physician who was directly responsible for developing the device and described the existence of papers that were published when the device first became available for general medical use. He also based his opinion that this was a national standard on his discussions with urologists from around the country, with whom he had discussed the matter at national conventions.

Dr. Kreutzer further opined that defendant deviated from the standard of care when he performed the procedure on plaintiff without first obtaining the imaging studies, and that the deviation caused plaintiff's injury. He explained that "if the study had been done, it's essentially 100 percent specific as to where blood vessels are. So if the information had been used then the vessel would not have been cut." Dr. Kreutzer did not dispute that the Acucise device could have been safely used in performing this procedure. By use of the preoperative imaging studies, the surgeon would have known of the existence and precise location of any blood vessels immediately adjacent to the UPJO. Then, if there was a vessel on top, you would cut on the bottom, and vice versa. Defendant's operative report does not disclose whether the cut was made posterior, anterior, or lateral. What is not disputed, however, is that the renal artery was immediately adjacent to the UPJO and was severed when the cut was made.

In the operative report from the 1995 procedure, Dr. Alexander described the exploration of the right kidney, identification of the right ureter, and the location of the insertion of the right ureter into the dilated right renal pelvis. He then said, "There was also an obvious blood vessel coursing over this area." The operative report was silent as to whether any blood vessel was transposed to the opposite side of the ureter. According to Dr. Kreutzer, the vessel described by Dr. Alexander could have been the renal artery. And, the specific location of the vessel with respect to the ureter was simply not identified in Dr. Alexander's operative report. Dr. Kreutzer said, "So it's really hard to understand what vessel he's talking about exactly where it is in relation to the pelvis."

Defendant testified to his belief that, because there was no mention in Dr. Alexander's operative report of transposition of a blood vessel, none was done. Likewise, he expressed the view that if the coursing vessel was the renal artery, Dr. Alexander would have identified it as such. Defendant conceded, however, that "it makes common sense to do a transposition in certain instances," and that it is often done. He also conceded that based on Dr. Alexander's operative report it could not be determined where the coursing blood vessel was located, acknowledging that the description was "somewhat vague." Most significantly, when defendant was asked whether he was concerned that blood vessels in the area may have been moved out of position from where they were because of the development of scar tissue following the prior surgery, he responded, "This is always a concern." When asked why he thought the renal artery was in the position it was at the time he cut it, he said, "There may have been some adjustment from the surgical maneuver or the shrinking of the kidney or some other anatomical change within the patient." He conceded that it was his "belief that the renal artery was in the position that it was, so close to the stricture because of the prior surgery."

Defendant contended that Passaic General Hospital, where he performed the surgery on plaintiff, did not have equipment available for a spiral CT scan or endoluminal ultrasound. He conceded, however, that these tests were readily available at area hospitals and that "[i]f [he] thought it was necessary [he] would have ordered the scan" and probably would not "anticipate any problem in finding a place that would do such a scan." When asked outright whether it was "possible" for him to have ordered and obtain a spiral CT scan or endoluminal ultrasound, defendant responded, "Yes."

Defendant presented the expert testimony of Dr. Stephen Cohen, a urologist licensed to practice in New Jersey. Dr. Cohen did not render an opinion as to the standard of care. He testified that the standard is not determined by a manufacturer's insert or the FDA, but must be established by the American Urological Association, Board of Urology. His testimony in this regard was not only unpersuasive but self-defeating. He said:

The American Urological Association puts out a -- has a number of committees that meet and get together and discuss and work out what they call practice guidelines which set the standard of care. Now, practice guidelines have not been set for everything. Some day that will happen, but they're -- they're working -- it's been going on for 10 years and they work their way through diagnosis by diagnosis and set the practice guidelines.

So, -- but the only -- the only guidelines that are set officially, written down, are -- come from the American Urological Association.

By Dr. Cohen's account, therefore, the standard of care must be established by the American Urological Association for all urological treatment, but, after ten years of developing these "practice guidelines," the work is incomplete. Thus, for some urological treatment, by Dr. Cohen's reckoning, no standard of care has been established by the American Urological Association. The logical conclusion is that in such instances, which could encompass the treatment rendered to plaintiff, no standard of care exists.

Dr. Cohen expressed the opinion that preoperative imaging studies were not necessary because the renal artery "is nowhere near -- not supposed to be anywhere near the utereopelvic [sic] junction." Further, he was confident that because Dr. Alexander's operative record did not affirm or specifically mention the transposition of any vessel, no transposition occurred. And, like defendant, he was confident that Dr. Alexander's reference to a coursing vessel in the area did not refer to the renal artery because the 1995 report did not specifically denominate it as the renal artery.

It is clear, however, that Dr. Cohen's description of the usual location of the renal artery referred to the normal anatomy. But with a secondary UPJO removal procedure, the surgeon is not necessarily confronted with a normal anatomy in the surgical field. That is the crux of the problem here. Indeed, Dr. Cohen acknowledged it. When asked why the renal artery was in "an anatomically incorrect location" when defendant cut it, Dr. Cohen explained that the 1995 surgery "must have been done in such a way as to put the -- as -- as to distort the anatomy so that that happened." He further explained that "the anatomy was distorted from normal," and then this colloquy followed:

Q. And it was distorted from normal because this was a secondary U.P.J.O. There had previously been surgery in that area.

A. Well, something --

Q. Is that correct?

A. Ordinarily, in a secondary, it's not distorted in that way. Can't happen. I mean, it's -- I've never seen it happen.

Q. Okay. It was distorted because of the earlier surgery.

A. That's true.

Q. And that's -- so, because it was a secondary U.P.J.O., that's why it was distorted because --

A. Well --

Q. -- there was prior surgery.

A. It was distorted from prior surgery.

Dr. Cohen had never used the Acucise device. He opined that, although he rejected the manufacturer's insert as authoritative, by its terms defendant was exonerated for not obtaining the preoperative imaging studies because it was not possible for him to do so. This is because those studies were not available at Passaic General Hospital and not generally available other than at high level research hospitals, such as NYU and Columbia in New York. He also commented that the endoluminal ultrasound is very expensive, saying it costs "about $5,000 a pop." He later conceded, however, that he did not really know the cost. He also conceded that, as Dr. Kreutzer testified, the endoluminal ultrasound is a disposable product that can be obtained from a medical supply company and used with a standard ultrasound machine that is available in hospitals at all levels. And, obviously any hospital in the United States can order and obtain those disposable devices. Most significantly, Dr. Cohen's contention that it was not possible for defendant to obtain a spiral CT scan or endoluminal ultrasound was flatly contradicted by defendant himself, who acknowledged that he could have readily obtained the study if he thought it was necessary.

During the course of the trial, each of the three doctors who testified (defendant and the two experts) drew large anatomical diagrams on an easel as an aid to their testimony. They were not to scale, and the various organs and blood vessels were deliberately drawn separate from each other to readily distinguish them for the benefit of the jury. Indeed, when Dr. Kreutzer initially drew a diagram and explained the location of the renal vein, he said, "But essentially they are one on top of the other. Vein, artery, renal pelvis." In his cross-examination, defense counsel said to Dr. Kreutzer: "You kind of put them together so it's hard to see which one is which. You ran the lines all over top of each other so there's no distinction. Could we start again? Could we redraw the right kidney, please." When plaintiff's counsel suggested using the textbook anatomical drawing, defense counsel declined the invitation and asked Dr. Kreutzer to continue drawing. At one point, he directed Dr. Kreutzer: "Now, drawing a distinct line and not having them overlap, could you please put in the renal artery for me where it would come into the kidney?"

We have not been furnished with these hand-drawn diagrams. We know they were large. The trial judge estimated the size of the easel as at least three feet high. And it is apparent that they were not only not drawn to scale but were intentionally distorted by separating anatomical parts for easier identification by the jurors, when those parts would normally be touching or in very close proximity inside the human body.

The judge did not allow in evidence the three hand-drawn anatomical diagrams or the textbook diagram that had been used during trial. During summation, defense counsel placed all three hand-drawn diagrams on the board and repeatedly referred to them, as an illustration of the substantial distance between the renal artery and the UPJ. And, he emphasized that all three testifying doctors, including plaintiff's expert, were consistent in these drawings. Plaintiff's counsel made no objection. During deliberations, the jurors asked if they could see the textbook anatomical drawing. Because it was not in evidence, the judge explained to the jury that they could not have it.

After the no cause verdict was returned, plaintiff moved for a new trial. Judge Graziano granted the motion. He noted that in ten and one-half years of presiding over jury trials, this was the first time he concluded that the jury "simply got it wrong," not merely that he disagreed with the jury, which happens from time to time, but that clearly and convincingly the verdict was against the weight of the evidence.

The judge noted that neither defendant nor Dr. Cohen were experienced in using the Acucise device in performing a secondary UPJO removal procedure, whereas plaintiff's expert was experienced in its use. He viewed plaintiff's expert as possessing superior credentials and experience to that of defendant's expert. Further, he noted that Dr. Kreutzer clearly opined that the standard of care required the preoperative imaging studies as a prerequisite to performing a secondary UPJO removal procedure, and with good reason. On the contrary, Dr. Cohen expressed no particular standard of care.

The judge was further concerned that the jury may well have been confused by a line of cross-examination of Dr. Kreutzer by defense counsel and the corresponding jury argument. This pertained to the fact that Dr. Kreutzer was not licensed to practice medicine in New Jersey and could not say whether Passaic General Hospital or other specifically mentioned New Jersey hospitals had spiral CT scan equipment or were performing endoluminal ultrasound imaging in 2002. Counsel asked, "You can't say whether or not any hospital in New Jersey had a spiral CT scan or endoluminal ultrasound in 2002, can you?" Dr. Kreutzer, responded, "No." Then, in summation, defense counsel intimated that Dr. Kreutzer was not qualified to render an opinion as to the standard of care in New Jersey. He said:

Dr. [Kreutzer] didn't know anything about the State of New Jersey. He couldn't even identify a hospital from the State of New Jersey much whether -- much less whether or not they had certain types of machines. He couldn't identify any of them. He didn't know anything about the State of New Jersey.

Thus, the judge was of the view that the cross-examination, combined with the summation arguments, had the capacity to confuse the jury regarding Dr. Kreutzer's testimony about the standard of care. The judge said:

But that left an opening for defense counsel to say in summation, this expert is not really an expert in New Jersey and he was able to suggest to the jury that the standard that the expert enunciated didn't apply to the State of New Jersey. That the expert was wrong. And that was based on those throw away statements at the end about him not being a surgeon operating in New Jersey and about not knowing whether this hospital or that hospital had those devices to be used in these tests.

And I think that the jury was confused on the issue of the standard, partially because of that.

The judge found a further basis for likely jury confusion in the use by defense counsel of the hand-drawn anatomical diagrams during summation. The judge analyzed it this way:

Additionally, I think there was confusion in the jury's mind as to what the standard was because the defense expert was very clear in saying that the artery that was severed in this case should not have been wherever the defendant encountered it, and the defendant had no reason to suspect that it was there.

Now, if you take that testimony together with the use by defense counsel of the drawings, I think it becomes very convincing to the jury. It created confusion in the jury's mind. The drawings are on large scale paper, I don't know how big that easel is that we use but it's at least three feet tall if not taller. The doctors, all three of them, drew those diagrams to show how this operation proceeded and to identify the various organs so the jury could understand the reason for the operation, physically how it was done, where everything was located.

They were not drawn to scale, nobody got up there and said this is drawn to scale or even approximately to scale. It's much larger than life on those papers. They had to be of necessity to show the jury the distinction between the various organs and explain to them the situation.

What defense counsel did without objection by plaintiff's counsel was to exhibit those diagrams, all three of those drawings to the jury, which were not in evidence and which I believe should not have been exhibited to the jury. Beyond their use by the experts, in aid of explanation of their testimony. Beyond that, they should not be used. If they're not in evidence, they shouldn't be exhibited to the jury. They shouldn't be seen at all beyond that.

But counsel went a little further than that. These overly large drawings show a large area, a large space between the artery that was severed and the area that the doctor thought he was operating in. I believe that defense counsel went so far as to say something to this effect. And if I don't have it exactly right, I'm sorry, but this is just the way I recall it. He pointed to the artery, pointed to where the doctor was operating, and he said look, on each of these experts they show you where these things are located. That artery is not even in the neighborhood of where this doctor was operating. And if he didn't say that, he might have said or it's nowhere near where this was being done.

That was very effective. I believe that it caused confusion in the jury's mind. Together with those giant charts, to let them believe he was nowhere in the neighborhood and nowhere in the area. When in fact the testimony I believe is that with regard to this person who was of a certain size, she's a small person, or any person, from the statements the doctors spoke about the area where the cutting was done and where the artery is supposed to be is within an inch or two. If it's that much, it's a small area, it's not a large area. Reference to those diagrams with those arguments would lead the jury to accept the defense expert testimony that the doctor had no reason to expect this thing to be there. In fact it was there, it was exactly where he was cutting, and he severed the artery.

Having, if he had done all those tests he would know it was there and there wouldn't have been the catastrophic injury to this plaintiff.

It is also worth reiterating, as we have previously stated, that these drawings were apparently made to depict the location of organs and blood vessels in their normal configuration, before any distortion that might result from a primary UPJO removal procedure. And, the judge's assessment of likely jury confusion was bolstered by the fact that the jury asked during deliberations to see the textbook anatomical drawing.

The judge was convinced that the combination of these circumstances created confusion in the jury's mind. He found:

The weight of the evidence in that case was clearly in the plaintiff's favor. The viewing of the testimony of the experts was misdirected by the things that I have mentioned concerning the use of the diagrams and the arguments that were made therefrom. And they came up with a decision that is not in accordance with the weight of the evidence, but clearly against the weight of the evidence.

And I believe that in reaching this decision I've given due regard to the opportunity of the jury to pass upon the credibility of the witnesses. I think I've explained why they may have misunderstood the witnesses. I think they clearly misunderstood the plaintiff's expert witness. And I believe that it gives me clearly and convincingly that a miscarriage of justice has occurred in this case. In the ten and a half years of jury trials, I cannot say that I have ever believed that the jury simply got it wrong, other than this time.

I've disagreed with juries in the past, but that's okay because that's what we're here for and that's what they're here for. This is not just a question of disagreeing, this is one time where I have to say they just got it wrong. And not because I say so, but for the reasons that I stated. I think they were misdirected, I think they were confused, I think they didn't clearly understand what they were told by experts and they came to the wrong conclusion because of that.

A trial judge shall grant a 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); Dolson v. Anastasia, 55 N.J. 2, 5 (1969). We will not reverse a trial court's ruling on a new trial motion "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. In deciding whether there was a miscarriage of justice, we defer to the trial court with respect to "intangibles" not transmitted by the record, such as credibility, demeanor, and "feel of the case," 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.

In making our analysis, we first note that, to the extent Judge Graziano may have suggested that items not in evidence but displayed to the jury as part of the trial may never be utilized by counsel in summation, we do not necessarily agree that there is any such per se prohibition. That said, the particular use of such items and the manner in which they are used might indeed be improper in a given case. With respect to the hand-drawn anatomical diagrams, we defer to the trial judge's feel of the case. As stated, we have not seen the diagrams, but have described their nature as best we can from the written record. We find plausible and persuasive the judge's explanation of why the extensive use of the diagrams, emphasizing that all three doctors were in agreement in the manner in which they drew them, was misleading and confusing.

Our independent assessment of the written record leaves us in agreement with Judge Graziano's assessment that the weight of the evidence was overwhelmingly in favor of plaintiff. Dr. Cohen did not express a standard of care. His explanation that only the American Urological Association could set a standard of care was implausible for the reasons we have mentioned. His contention that defendant had no reason to expect plaintiff's renal artery to be anywhere near the surgical field was belied by his own acknowledgement that it was there because the anatomy was distorted by the primary UPJO removal procedure, which, in turn, is the very circumstance that necessitates obtaining preoperative imaging studies prior to performing a secondary UPJO removal procedure. Dr. Cohen lacked experience in using an Acucise device. Finally, Judge Graziano's assessment of the relative inferiority of Dr. Cohen as an expert compared to Dr. Kreutzer constitutes a further intangible with respect to the respective credibility of the two experts, to which we defer.

We also agree that defense counsel's implication that the standard of care described by Dr. Kreutzer was not applicable in New Jersey was not based upon the evidence, and clearly had the capacity to mislead and confuse the jury.

Therefore, based upon our independent review of the record, allowing for deference to the trial court regarding intangibles as we have discussed, we conclude that the jury verdict in the first trial clearly and convincingly was against the weight of the evidence and constituted a miscarriage of justice. Accordingly, we find no error in the grant of a new trial.

Defendant's remaining arguments lack sufficient merit to warrant extended discussion. See R. 2:11-3(e)(1)(E). We comment briefly.

Judge Graziano in no way displayed any bias or partiality in favor of plaintiff. His reasons for granting a new trial were based upon his assessment of the facts and application of the controlling legal principles. Indeed, defense counsel conceded "that we're not in any way saying that we think you [Judge Graziano] have the inability to be impartial in those -- during those proceedings [i.e. the retrial]." The cases relied upon by defendant pertain to recusal by a trial judge sitting without a jury as the factfinder in situations in which it would be difficult to retry the same case with an open mind having already made factual findings. That is not the case here with a jury trial.

The evidence in the second trial was substantially the same as that in the first. There is no merit to defendant's contention that plaintiff's expert failed to establish a standard of care and defendant's deviation from the standard. Dr. Kreutzer was well qualified and his opinions were clear and persuasive.

The judge did not mistakenly exercise his discretion in allowing evidence that defendant failed to pass the board certification examination in urology. Defendant argues that the evidence should have been barred either because it was irrelevant or because its relevance was outweighed by undue prejudice, confusion of the issues or misleading the jury. See N.J.R.E. 403(a). The judge allowed limited testimony in that regard as a fair counterbalance to Dr. Cohen's extensive testimony about positions he has held, societies to which he belonged, and the like, which, of course, bolstered the degree of his purported expertise.

We find no impropriety in the judge's ruling allowing plaintiff to testify that because she has lost a kidney she is fearful and apprehensive because, should her other kidney fail or be damaged in an accident, she would face death or dialysis. Such fears are a natural consequence of the injury she suffered, and there was no mistaken exercise of discretion in allowing her to so testify.

In the retrial, defense counsel requested permission to use hand-drawn anatomical diagrams during summation. The judge disallowed their use based upon his perceived misuse of such items in the first trial. This was a proper exercise of discretion.

Finally, we find no error in Judge Graziano's denial of defendant's motion for remittitur. His judicial conscience was not shocked by a $1,200,000 award to a forty-one year old woman for the loss of a kidney and substantial disfiguring scarring.

The controlling principles on this issue are well-established. Trial courts should not interfere with jury damage awards unless so disproportionate to the injury as to shock the judicial conscience. Baxter, supra, 74 N.J. at 596-97. "A trial court should set aside excessive verdicts only in 'clear cases.'" Caldwell v. Haynes, 136 N.J. 422, 431-32 (1994) (quoting Fritsche v. Westinghouse Elec. Corp., 55 N.J. 322, 330 (1970)). "In assessing whether the quantum of damages assessed by the jury is excessive, a trial court must consider the evidence in the light most favorable to the prevailing party in the verdict." Id. at 432. And, deference must be given in this regard to the trial court's feel of the case. Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). Thus, "a trial court should not interfere with a jury verdict unless the verdict is clearly against the weight of the evidence." Caldwell, supra, 136 N.J. at 432. Remittitur is an appropriate remedy to avoid the unnecessary expense and delay of a new damages trial, but should only be utilized if it is first determined that the damages were excessive applying the principles discussed. Verdicchio v. Ricca, 179 N.J. 1, 39 (2004); see also N.J.S.A. 2A:53A-42.

Applying these principles, we have no hesitancy in concluding that, considering the magnitude of the permanent injury to this relatively young plaintiff, viewing the evidence in the light most favorable to plaintiff, and giving due deference to the trial judge's feel of the case, our judicial conscience is not shocked by the award. Accordingly, we have no occasion to interfere with Judge Graziano's denial of defendant's remittitur motion.

 
Affirmed.

The same witnesses testified, with one exception. In the first trial, plaintiff called a psychiatric expert, but did not call that witness in the second trial.

(continued)

(continued)

29

A-5405-05T5

October 1, 2007