MARLENE DRODY v. PLASTIC SURGERY ARTS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4116-06T34116-06T3

A-4645-06T3

MARLENE DRODY,

Plaintiff-Respondent,

v.

PLASTIC SURGERY ARTS and EILEEN

SLIMM,

Defendants-Appellants,

and

KEVIN T. NINI, M.D., ROBERT

M. OLSEN, M.D., and PHILIP WEY, M.D.,

Defendants.

__________________________________

MARLENE DRODY,

Plaintiff-Appellant,

v.

PLASTIC SURGERY ARTS and EILEEN

SLIMM,

Defendants-Respondents,

and

KEVIN T. NINI, M.D., ROBERT M. OLSEN, M.D.,

and PHILIP WEY, M.D.,

Defendants.

____________________________________________

 

Argued October 22, 2008 - Decided

Before Judges Cuff, Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-10634-02.

Jill R. O'Keefe argued the cause for appellants in A-4116-06T3 and respondents in A-4645-06T3 (Orlovsky, Moody, Schaaff & Gabrysiak, attorneys; Ms. O'Keefe, on the brief).

Stephen A. Mennella argued the cause for respondent in A-4116-06T3 and appellant in A-4645-06T3 (Gill & Chamas, attorneys; Mr. Mennella, on the brief).

PER CURIAM

In these appeals, we consider whether the trial judge erred by permitting an expert's testimony even though plaintiff did not serve the expert's report until the first day of trial. Although the judge had the discretion to allow the testimony, defendants were prejudiced in having to depose the expert during the course of the trial in order to adequately prepare. This and other erroneous evidence rulings compel our remand for a new trial.

The evidence adduced at trial revealed that for years plaintiff was bothered by redness and ruddiness in the creases underneath her nose and cheekbones. She sought treatment for this rosacea condition in 1994 without success, and later utilized a product she found on the Internet with disappointing results.

On November 30, 2000, plaintiff presented to defendant Plastic Surgery Arts to inquire about makeup for her condition. During that visit, she met with defendant Eileen Slimm, L.P.N., who suggested a skin care analysis. Slimm examined plaintiff and recommended a rosacea protocol marketed by Physician's Choice of Arizona. Plaintiff consented, and Slimm performed dermatological peels on that date, on January 25, 2001, and on March 12, 2001, when she received her third and final treatment at the hands of defendants Plastic Surgery Arts and Slimm (defendants).

Plaintiff was subsequently examined by other health care providers with complaints of increased pore size and scarring in the area where the peels were applied. She was of the view that these additional problems resulted from defendants' treatment of her condition.

Plaintiff filed her complaint in this action against defendants and others on November 25, 2002. In addition to her alleged physical injuries, plaintiff claimed she had sustained psychological injuries, which have inhibited her socially and in the furtherance of her career. More than four years later, the case was tried to a jury, which returned a verdict that found defendant Slimm negligent and awarded $650,000 in damages. The jury also found 35% of plaintiff's condition was pre-existing, thereby requiring a reduction in her net recovery. Defendants' subsequent motion for a new trial was denied, but the judge remitted the award from $650,000 to $500,000. With the 35% reduction, and the addition of prejudgment interest, judgment was entered in plaintiff's favor in the amount of $380,418.64.

In No. A-4116-06T3, defendants appealed the order that denied their motion for a new trial, arguing that: (1) the judge erred in permitting plaintiff's expert to testify because the expert's report was not served until the first day of trial; (2) the judge erred in admitting several photographs of plaintiff that had not been produced in discovery; (3) the judge erred in admitting hearsay documents relating to the product utilized by defendants in treating plaintiff; (4) the judge erred in permitting expert testimony about defendants' alleged failure to explain the risks of the procedure when plaintiff had not claimed a lack of informed consent; (5) the judge erred in permitting plaintiff to testify about her inability to further her career because her economic damage claim had been barred; (6) the accumulation of errors rendered the verdict a miscarriage of justice and warranted a new trial; and (7) the verdict was against the weight of the evidence. In No. A-4645-06T3, plaintiff appealed that part of the judge's order that reduced the jury's award from $650,000 to $500,000. We conclude that by refusing to preclude expert testimony based on a report that was not served until the first day of trial, the judge mistakenly placed unreasonable burdens on defendants' attempt to meet this new expert testimony. We also conclude that the judge erroneously admitted into evidence photographs, which were not produced in discovery, as well as hearsay statements regarding the products of Physician's Choice of Arizona. Because these errors warrant the granting of a new trial, we need not reach defendants' other arguments or the issue raised by plaintiff in her appeal. We reverse the order denying defendants' post-trial motion and remand for a new trial.

We, first, conclude that the judge erred in his choice of a remedy warranted by plaintiff's late submission of an expert report. The record reveals that plaintiff originally provided in pretrial discovery the report of Doris Rothman, Ph.D. However, because Dr. Rothman refused to provide her file to defense counsel, the trial court entered an order on August 25, 2004, which barred Dr. Rothman's testimony and provided plaintiff with an additional ninety days to retain a new expert; that order also extended the discovery end date to November 29, 2004.

As a result of what occurred with Dr. Rothman, plaintiff retained Frederick Evans, Ph.D., who opined that plaintiff's psychological injury was caused by defendants' negligence. Dr. Evans was deposed, but later passed away, generating a case management conference on August 3, 2006, which produced an order requiring plaintiff's submission of a new expert report no later than October 15, 2006, extending the discovery end date to December 30, 2006, and rescheduling the trial date for January 8, 2007.

On September 18, 2006, defense counsel received a letter from Peter Krakoff, Ph.D., which was dated September 12, 2006, and which stated only the following:

Marlene Drody was referred to me by her attorney . . . . Ms. Drody is involved in a medical malpractice case. She alleges that a treatment she was given for Rosacea was contraindicated and resulted in increased, reddening, inflammation and scarring. As she realized that the alleged error was permanent she became increasingly depressed and anxious. The psychologist who most recently treated her (Frederick Evan[s], Ph.D.) [who] was going to testify in her case died. I was then contacted.

I interviewed Ms. Drody at my office on September 5, 2006. She still appears to be suffering from symptoms of Post Traumatic Stress disorder. I anticipate seeing her several more times prior to filing a report in mid October. I reviewed an initial packet of material which included Dr. Evans['s] report, treatment notes and deposition, as well as Ms. Drody's deposition. I will be reviewing additional records as well. I also anticipate contacting Ms. Drody's friends and family.

As can be seen, this letter was merely preliminary to the later submission of an expert opinion; the letter sets forth only Dr. Krakoff's impression that plaintiff "still appears to be suffering from symptoms of Post-Traumatic Stress Disorder," and reveals that further examination and investigation were required prior to the rendering of a report by mid-October 2006. This letter, however, was all that plaintiff's counsel provided to defense counsel regarding this new expert prior to the commencement of the trial.

On January 8, 2007, the first day of trial, defense counsel was provided with Dr. Krakoff's report, which bore the date of October 29, 2006. Defense counsel objected and argued that Dr. Krakoff's testimony should be barred due to plaintiff's failure to provide his report in a timely fashion. As the colloquy on the application reveals, plaintiff had retained new counsel at the time Dr. Krakoff became involved in the matter and current counsel was under the impression that prior counsel had served Dr. Krakoff's October 29, 2006 report. Although it was not argued that plaintiff's failure to serve the report was anything other than inadvertent, defendants nevertheless pressed the legitimate argument that, because the report was served well beyond the date imposed and beyond the date that simple fairness would allow, Dr. Krakoff should have been barred from testifying regardless of the absence of any animus on plaintiff's part.

Concluding that plaintiff had no intent to disadvantage defendants, the judge refused to bar the expert testimony. In an attempt to ameliorate the prejudice this caused for the defense, the judge directed that Dr. Krakoff produce his file and also appear for a deposition the next day. Although the deposition occurred as ordered, defendants continued to press the argument that being put to the burden of preparing to meet plaintiff's case in this haphazard fashion was patently unfair. They argued that it was simply unreasonable to require their counsel to prepare for and conduct Dr. Krakoff's deposition with so little notice, and then, within an hour of the completion of the deposition, to prepare for and conduct the cross-examination of Dr. Krakoff in front of the jury, let alone to make any other adjustments in their trial strategy in light of the surprise report.

We agree that these circumstances alone require a new trial. Our rules were intended to promote fairness, not mere efficiency. Here, the circumstances resulting from Dr. Evans's death without question warranted an extension of the discovery end date. Rule 4:24-1(c) precludes an extension of discovery absent "exceptional circumstances"; Dr. Evans's death was an exceptional circumstance. See, e.g., Tucci v. Tropicana Casino & Resort, Inc., 364 N.J. Super. 48, 52 (App. Div. 2003). The judge who considered the application to extend the discovery end date certainly recognized this and, as a result, crafted a new schedule for the submission of plaintiff's expert report, for the close of discovery and for a trial in what had become a very old case. Plaintiff has not argued that those new dates created any undue difficulties. Notwithstanding being provided with this opportunity, plaintiff failed to serve her expert report within the time required by the court's order. Although it has not been asserted that the delay in service was deliberate, we conclude this was no valid reason for burdening defendants when it was plaintiff's omission that created the difficult situation.

This case was, at the time of trial, well over four years old. Plaintiff had more than ample time to do all those things necessary or appropriate to prepare for trial. When her first expert was barred over two years before trial, the court provided plaintiff with additional time to retain a new expert. When that expert died, the trial court again provided additional time to replace him. Yet, plaintiff failed to comply with the deadlines set forth for the submission of her third expert's report. Rather than craft a remedy that would fairly deal with these circumstances, the judge adopted an approach that laid the entire burden of plaintiff's inadvertence at defendants' doorstep.

We do not mean to suggest that the judge should have barred Dr. Krakoff from testifying, although there is merit in defendants' contention that such a result is permitted by Bender v. Adelson, 187 N.J. 411, 428-31 (2006). However, in light of the trial judge's finding that plaintiff's failure to timely serve the expert report was purely inadvertent, we have no cause to fault the trial judge for withholding the draconian penalty of barring the testimony. By the same token, there is no doubt that the judge's liberality in permitting the expert to testify despite the breach of the discovery deadline posed severe consequences for defendants' ability to adequately prepare for a different trial than they had a right to expect when arriving at the courthouse on January 8, 2007.

Although the trial judge seems to have harbored the impression that he was required to choose between barring plaintiff's expert testimony or imposing extreme limits on defendants' ability to depose the expert and prepare to respond to his trial testimony, there was a third choice. We conclude that in these circumstances, the only reasonable and practicable solution was for the judge to have adjourned the trial. In that way, the judge could still permit plaintiff to present her expert's testimony and yet restore to defendants the right to depose plaintiff's expert and to prepare for trial based upon this new information within a less hectic time frame. The judge's decision to place unreasonable burdens on defendants in order to permit plaintiff's expert to testify, in the face of the untimely service of an expert report, was erroneous and warrants the conducting of a new trial.

Although our rules and procedures are designed to promote efficiency in the disposition of cases, we must not lose sight of the cardinal goal -- "to serve the ends of substantial justice." Grobart v. Society for Establ'g Useful Manufactures, 2 N.J. 136, 152 (1949). In the words of then Judge (later Justice) Jacobs, the "true role" of our procedures is the securing of "just and expeditious determinations between the parties on the ultimate merits." Tumarkin v. Friedman, 17 N.J. Super. 20, 27 (App. Div. 1951), certif. denied, 9 N.J. 287 (1952). Here, the judge certainly chose an expedient resolution in responding to the quandary presented by plaintiff's failure to serve the expert report until the start of the trial. But saddling defendants, who were the victims of plaintiff's error, with the burden of conducting a significant and involved discovery proceeding in the midst of a trial, was hardly just and undoubtedly prejudicial. This ruling alone mandates a new trial.

In addition, we find error in the judge's admission of photographs, which were not produced during discovery, that depicted plaintiff in social settings prior to the medical treatment in question. These were offered as evidence of the impact the alleged malpractice had on her psyche and plaintiff's feelings about herself. We do not question the judge's determination that the photographs were relevant to the issues posed. However, these photographs were obviously available to plaintiff for her use as early as the inception of the case. Yet, for more than four years, plaintiff never turned the photographs over to defendants in discovery.

It is true that plaintiff provided other photographs in discovery that depicted plaintiff's appearance before the treatment in question, but those photographs did not reveal as much as the photographs in question. These new photographs depicted plaintiff in a social setting and were not merely cumulative, as plaintiff argues, but instead provided a foundation for her expert's opinion regarding the change in plaintiff's outlook on life that was not so markedly revealed by the photographs previously provided in discovery. This is best demonstrated by the fact that plaintiff grew emotional and cried when she identified and spoke about the withheld photographs.

This is yet another example of how defendants were prejudiced by a loose interpretation of the discovery end date. Again, we do not mean to suggest that plaintiff's new attorney deliberately withheld this information from defendants. Regardless of any intent or lack of intent behind the late turnover of these photographs, the fact remains that this event further unfairly surprised defendants.

Defendants also contend that the judge erred in admitting several documents that were allegedly disseminated by Physician's Choice of Arizona regarding its products. Defendants objected at the time, but the judge ruled they were admissible. Yet, plaintiff could not explain then, and has not explained in her submissions in this court, how these documents were admissible. The parties agree these hearsay documents were not "learned treatises" as defined by N.J.R.E. 803(c)(18). Plaintiff, however, incongruously argues in her brief that because those documents "were not learned treatises . . . they were properly admitted into evidence." Plaintiff has not cited any authority for the proposition that because a document does not fit one hearsay exception it must therefore be admissible even though it fits no other hearsay exception. The fact remains that the documents consisted of the hearsay statements of Physician's Choice of Arizona and were not admissible through any known hearsay exception. The judge mistakenly admitted these documents in evidence.

In the final analysis, we conclude that the judge's mistaken resolution for the late submission of plaintiff's expert report requires that we mandate a new trial. We are also satisfied that the confluence of the three errors we have identified herein presents sufficient cause to conclude that the jury's verdict represents a miscarriage of justice and warrants the granting of a new trial.

 
We reverse the order denying defendants' post-trial motion and remand for a new trial. In light of our comments in the footnote below, we deem it appropriate that the new trial we have ordered be conducted by another judge.

Plaintiff's complaint also sought judgment against Kevin T. Nini, M.D., Robert M. Olsen, M.D., and Philip Wey, M.D. These defendants obtained summary judgment on September 10, 2004.

Defendants make particular reference to the fact that Dr. Krakoff appeared for his deposition with forty-seven pages of somewhat indecipherable handwritten progress notes, which should have been provided weeks earlier, as a further hampering circumstance.

We note that the report bears a date of October 29, 2006 whereas the trial court's case management order limited the submission of this expert report to October 15, 2006.

Lastly, we briefly comment about a post-trial event discussed in a letter the trial judge sent to us, pursuant to Rule 2:5-1(b), after the parties filed their appeals. The letter refers to the fact that the judge, as he indicates is his stated custom of many years, discussed the case and other issues with the jurors, in the company of counsel, after the verdict was rendered. In moving for a new trial, defense counsel made reference to the content of this meeting with the jury. We are troubled by such post-trial, off-the-record discussions that appear to serve nothing more than the interests of public relations; they are fraught with peril. See State v. Walkings, 388 N.J. Super. 149, 158-59 (App. Div. 2006); see also Harris v. United States, 738 A.2d 269, 278-81 (D.C. App. 1999). Having said that, we recognize that neither party has asserted that this post-verdict discussion has any bearing on the issues presented in these appeals. But we cannot leave this subject without addressing the judge's condemnation, in his letter to us, of defense counsel for having divulged during the argument on the motion for new trial the substance of the judge's conversation with the jury. In our view, the judge's criticism of counsel was misplaced. Counsel cannot be faulted for zealously advocating her client's interests by alluding to statements made during this unusual post-trial discussion regardless of whether she may have breached the conditions unilaterally imposed by the judge as a price for her admission to the judge's ad hoc and unauthorized conversation with the jury.

(continued)

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A-4116-06T3

November 6, 2008