HAILEY DOOUTEIRO v. DONATO S. RUSSO, M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6273-06T16273-06T1

HAILEY DOOUTEIRO, a minor by

her Guardian ad Litem, ANNA

DOOUTEIRO, and ANNA DOOUTEIRO

and PAUL DOOUTEIRO, individually,

Plaintiffs-Respondents,

v.

DONATO S. RUSSO, M.D., and

MARIANNE K. HERRIGHTY, M.D.,

Defendants-Appellants,

and

OB-GYN ASSOCIATES OF UNION,

LAWRENCE G. SELTZER, M.D.,

STEVEN BRINEN, D.O., t/a

PARK IMAGING ASSOCIATES, P.A.,

Defendants.

__________________________________________

 

Argued June 3, 2009 - Decided

Before Judges Rodr guez, Lyons and Kestin.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3102-04.

Philip F. Mattia argued the cause for appellants (Philip F. Mattia & Associates, attorneys; Mr. Mattia, on the brief).

Dennis M. Donnelly argued the cause for respondents (Blume Goldfaden Berkowitz Donnelly Fried & Forte, attorneys; Mr. Donnelly, on the brief).

PER CURIAM

Donato S. Russo, M.D. and Marianne K. Herrighty, M.D., both OB-GYNs, appeal from a verdict awarding damages in a wrongful birth action to Hailey DoOuteiro, through her mother and guardian, Anna DoOuteiro, and to her parents, Anna and Paul DoOuteiro, individually (collectively "plaintiffs"). We reverse and remand for a limited trial to apportion liability.

These are the salient facts. Anna became pregnant with her second child in early November 2001. Defendants provided her with prenatal care, as they had during her first pregnancy.

On January 16, 2002, defendants wrote Anna a prescription for an "OB ultrasound for anatomy." The ultrasound was performed by Lawrence G. Seltzer, M.D. In a report dated February 5, 2002, Seltzer indicated the results of the ultrasound. He specifically noted, "The spinal column is parallel with no evidence of a spina bifida." The report makes no mention of the cerebellum. On July 3, 2002, Hailey was born with spina bifida.

According to expert testimony adduced at trial, spina bifida is a condition caused by an opening in the bone surrounding the spinal cord, which can result in paralysis and a loss of sensation below the defect. Ultrasounds detect approximately ninety percent of spina bifida cases. Spina bifida is best detected in an ultrasound view of the cerebellum, which will exhibit an abnormal "lemon sign" in the skull or "banana sign" in the cerebellum, both caused by a loss of cerebral spinal fluid. A view of the spinal column is a less-effective means of detecting spina bifida.

Plaintiffs filed suit against defendants and Seltzer, alleging they negligently failed to detect evidence of Hailey's severe birth defects, which in turn deprived Anna of her right to terminate the pregnancy. Defendants filed an answer that included a "Demand and claim for contribution under the terms and conditions of the Joint Tortfeasors Contribution Act and the Comparative Negligence Act . . . against all named co-defendants." The answer also included a "Notice of Allocation," which provided:

Pursuant to R. 4:7-5(c) and Young v. Latta, 123 N.J. 584 (1991), this defendant hereby advises that if any co-defendant settles the within matter prior to conclusion of trial, the liability of any settling co-defendant shall remain an issue and this defendant shall seek an allocation of percentage of negligence by the finder of fact against such settling co-defendant and/or a credit in favor of this defendant consistent with such allocation.

Defendants' expert, Allen Donnenfeld, submitted a report that did not discuss any problems with the ultrasound or with Seltzer's analysis. However, at deposition, Donnenfeld stated that he could not make any assessments based on the ultrasound images because the copies of the films he received were "very dark, blurry, and very small." Donnenfeld noted that Seltzer's report did not mention the cerebellum and that "the standard of care is to evaluate the cerebellum and to document if you see it and you measure it; and if you don't see it, that you don't see it."

Before trial, plaintiffs settled with Seltzer. Shortly thereafter, defendants attempted to submit a supplemental letter, without supporting certification, in which Donnenfeld opined that Seltzer deviated from the standard of care.

In a series of rulings, the judge permitted the parties to inform the jury that another defendant had settled out of the case, but denied defendant's request that the jury be permitted to apportion fault to Seltzer. Donnenfeld was permitted to testify as to the standard of care for conducting a prenatal ultrasound but could not testify, consistent with his supplemental letter, as to whether Seltzer had deviated from the standard of care.

The jury returned a verdict finding defendants liable for Hailey's wrongful birth, apportioning fault fifty-one percent to Russo and forty-nine percent to Herrighty. The jury awarded $197,678 to compensate Hailey for her for extraordinary medical expenses until she reached the age of eighteen, $1,071,323.70 to compensate Hailey for such expenses after she turned eighteen, and $100,000 to Anna and $125,000 to Paul for pain and suffering.

Defendants appeal, arguing:

THE TRIAL COURT ERRED IN REFUSING TO ALLOW THE JURY TO ALLOCATE NEGLIGENCE TO THE SETTLING DEFENDANT, DR. SELTZER. SINCE THIS ERROR DEPRIVED DEFENDANTS OF A FAIR TRIAL, THE CASE SHOULD BE REMANDED FOR A NEW TRIAL ON LIABILITY AND THE APPORTIONMENT OF FAULT BETWEEN THE DEFENDANTS AND THE SETTLING DEFENDANT.

We agree.

Generally, so long as there is sufficient notice of a claim for contribution, "a non-settling defendant may seek a credit in every case in which there are multiple defendants, whether or not a cross-claim for contribution has been filed." Young v. Latta, 123 N.J. 584, 596-97 (1991); N.J.S.A. 2A:15-5.2. Where it is necessary to prove a co-defendant's liability, an expert report must be produced that "allege[s] well before trial the causative fault of a co-defendant . . . ." Young, supra, at 197.

All that is required to submit an apportionment claim to a jury is sufficient evidence for the jury to construct a "rough" assessment of liability. Boryszewski v. Burke, 380 N.J. Super. 361, 384 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006) (citing Campione v. Soden, 150 N.J. 163, 184-85 (1997)). If the jury is incapable, as a matter of law, of determining the actual apportionment, a court may still craft an arbitrary, equal apportionment among all the causative elements. Ibid.

A non-settling defendant is only liable for that portion of the damages award attributable to that defendant's percentage of fault. Cartel Capital Corp. v. Fireco of N.J., 81 N.J. 548, 569 (1980). The non-settling defendant does not have a cross-claim for contribution from a settling defendant. Tefft v. Tefft, 192 N.J. Super. 561, 570 (App. Div. 1983).

Here, we find there was sufficient evidence in the record to permit the apportionment claim and to submit the claim to the jury. The defendants provided expert testimony that: Seltzer should have obtained, or noted the absence of, a view of the cerebellum; that his ultrasound report made no mention of the cerebellum; and that his report stated "no evidence of a spina bifida" where a spina bifida was present.

The judge erred in not permitting the jury to consider defendants' apportionment claim. We remand for a trial to assess liability as between defendants and Seltzer and to reduce the damages award against the defendants accordingly.

Defendants also contend:

THE IMPROPER COMMENTS MADE BY [PLAINTIFFS'] COUNSEL DURING SUMMATION AND THE TRIAL JUDGE'S FAILURE TO APPROPRIATELY INSTRUCT THE JURY TO ADDRESS THE COMMENTS WERE PREJUDICIAL TO DEFENDANTS AND WARRANT A NEW TRIAL.

We find this argument without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

 
Reversed and remanded for a new trial on liability.

The Young holding has been incorporated into Rule 4:7-5(c).

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A-6273-06T1

August 17, 2009