ALEXIS SPANDET v. PAUL BUCKNAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6379-08T2

ALEXIS SPANDET,

Plaintiff-Appellant,

v.

PAUL BUCKNAM and MARY LOUISE BUCKNAM,

Defendants-Respondents.

________________________________________

April 11, 2011

Submitted September 15, 2010 - Decided

Before Judges Fuentes and Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Hunterdon County, Docket No.

L-654-07.

DiFrancesco, Bateman, Coley, Yospin, Kunzman,

Davis & Lehrer, PC, attorneys for appellant

(Richard J. Guss, on the brief).

O'Toole & Couch, LLC and John P. Galina,

attorneys for respondents (Brian R. O'Toole

and Mr. Galina, on the brief).

PER CURIAM

Plaintiff Alexis Spandet filed suit against defendants Paul Bucknam and Mary Louise Bucknam seeking compensatory and punitive damages for injuries plaintiff sustained from consuming alcohol while she attended a social function at defendants' residence. After considering the evidence presented at trial, a jury found defendants sixty percent liable and awarded plaintiff $2,500 in compensatory damages; the jury did not award punitive damages. The court thereafter molded the award of damages to reflect the jury's findings on liability, leaving plaintiff with a net award of $1,500.

Plaintiff now appeals, arguing that the trial court erred when it precluded her expert witness from testifying about plaintiff's possible ingestion of Rohypnol.1 Plaintiff also seeks a new trial based on the inadequacy of the jury's damages award. We reject these arguments and affirm.

Our factual recitation will be limited to the extent necessary to provide context for the two legal issues raised by plaintiff in this appeal.

I

Plaintiff was seventeen years old when she accepted an invitation from two girls she knew to attend a party at the house of defendants' son, Jonathan. She testified that, aside from wine at church and dinner, she had never consumed alcohol before that day. When she arrived at the party, Mrs. Bucknam told her that "the kids were in the garage." When she arrived at the garage, plaintiff saw "a bunch of kids . . . playing beer pong," which she described as a game where kids throw "a little ball into [] cups." According to plaintiff, there were between twenty and thirty young people gathered in the garage.

Shortly after plaintiff arrived at the party, a youth approached her and "put" a green bottle to her mouth. Plaintiff swallowed some of the liquid in the bottle and then "pulled away," causing the liquid to spill onto her clothes. A short time after swallowing this liquid, plaintiff felt "like the whole room was spinning." Despite this, plaintiff agreed "to take a shot" of vodka. She explained that her "inhibitions were down, and everybody else was drinking."

The next thing plaintiff remembers was being in the bathroom and hearing two other girls say: "We have to make her throw up"; plaintiff indicated that she "couldn't move but [she] could hear them." While in the bathroom, she heard "a male's voice" and felt "somebody lift up my shirt, I felt somebody put their hands down my pants, but the girls said [to] cut it out."

Although she had no memory of leaving the bathroom, plaintiff next remembered "laying on . . . some sort of bench in the garage," and hearing defendant Paul Bucknam say: "Let her sleep it off." Plaintiff testified that she may have had as many as three shots of vodka.

The two girls who had invited plaintiff to the party testified that they saw plaintiff chugging vodka directly out of the bottle "for a good couple of seconds." One of them testified that plaintiff stated she was called "Whiskey Girl" in her old town. Another girl at the party estimated that plaintiff drank one quarter to one half of a 750 milliliter bottle of vodka. None of the witnesses saw any boy put his hands down plaintiff's pants. One of the teenage witnesses testified that she helped plaintiff out of the bathroom and into the garage; she also corroborated plaintiff's testimony that Paul Bucknam told her to let plaintiff sleep it off.

Against plaintiff's wishes, her parents declined to permit her to stay the night at the Bucknams'. Plaintiff's mother, Janet Johnson, testified that she and her husband picked plaintiff up from the party and assisted her into the backseat of their vehicle. When plaintiff would not wake up, Mrs. Johnson called 911 from the car. Plaintiff was hospitalized and remained in a comatose condition for four of the five days she was at the hospital.

Plaintiff testified that she did not want to go back to school after the incident because when she first went back, her peers would look at her in the halls and whisper. She did not associate with her fellow students or have any friends. Although she wanted to participate in extracurricular activities such as softball, she felt emotionally unable to do so. Plaintiff attended Raritan Valley Community College in the fall semester, and by that time believed she "was getting better."

Plaintiff eventually transferred to Drew University. When she discovered that Jonathan Bucknam was also a student at Drew, she decided to transfer to the College of New Jersey. Her decision to transfer was based, at least in part, on feeling uncomfortable attending the same school as Jonathan. According to plaintiff, the incident at the party also left her generally distrustful of people, and as a result, she has difficulty making friends.

Plaintiff was treated by Dr. Keith Goldstein during her five-day hospitalization. Dr. Goldstein prepared a written report of his diagnosis and treatment as part of plaintiff's case. We cite the following passages from Dr. Goldstein's report that relate to the issues raised on appeal:

[Plaintiff's] initial urine drug screen was negative. Alcohol level was 160. As detailed in Dr. Cohn's summary, she had been at a party for several hours and was found comatose after drinking vodka and possibly using other recreational drugs. It was noteworthy to Dr. Cohn that her degree of toxic delirium as well as her respiratory depression was discordant with the measured blood alcohol level. She was started on an Ativan drip and developed severe apnea. This was stopped and she was started on Romazicon via drip at 0.5 mg per hour. She had a rather dramatic response to Romazicon and was quickly and easily extubated.

. . . .

Subsequent to this occurrence we were able to speak with Alexis directly and obtained further details with regard to the course of events that evening. Apparently she was given alcohol in various forms, including shots, as well as open beer bottles delivered by young men at the party, which apparently was best characterized as a raucous party. Concern was therefore raised for agents otherwise undetectable on a routine urine drug screen, though Rohipnol [sic], the date rape drug, a benzodiazepine, is not routinely detected on urine drug screens. Other considerations included ketamine and GHB. All three agents were sent for assay by outside labs. Fortunately all three ultimately were negative on the assays obtained. Of note, a repeat urine drug screen on Nov. 12 was positive for benzodiazepines, however the patient had already been receiving in-hospital Ativan. Also it is certainly possible that Romazicon may have been picked up as well and detected on a urine drug screen as a benzodiazepine.

Despite our inability to identify an ingested agent other than alcohol, the dramatic response to Romazicon which was delivered and witnessed by myself is sufficient to say that there is strong reason to assume that an undetected benzodiazapene-like agent was given. Indeed the degree of respiratory depression during the initial presentation, the delayed decompensation after clearance of alcohol, and the initial alcohol level of only 160 all point strongly to a co-ingestant. The fact that no such agent was identified by no means rules out the presence of her having received or taken an undetected hypnotic agent.

Fortunately the patient recovered completely and should suffer no long-term medical consequences. However, if she was unknowingly administered a hypnotic drug of some type, long-term psychological consequences of this event are certainly possible but are beyond my area of expertise and would be deferred to a psychiatric assessment. Please let me know if I can be of any further assistance with regard to this matter.

[(Emphasis added).]

Based on this report, plaintiff sought to call Dr. Goldstein as an expert witness. Plaintiff sought to have Dr. Goldstein testify about the possible presence of an "undetected benzodiazapene-like agent" in plaintiff's body in support of her claims for compensatory and punitive damages.

The court conducted a N.J.R.E. 104 hearing outside the presence of the jury in which Dr. Goldstein elaborated on his statements in the report. As a threshold issue, Dr. Goldstein testified that plaintiff was the first and only patient he has treated involving the possible ingestion of Rohypnol. Despite this lack of clinical experience, Dr. Goldstein opined that plaintiff's reaction to Romazicon "points heavily" to a conclusion that she ingested Rohypnol, irrespective of "[t]he fact that the blood level from Rohypnol was negative." His "impression" that a "long-acting benzodiazepine" was involved remained unchanged despite blood and urine analysis conducted in California that did not detect Rohypnol in plaintiff's body.

On cross-examination, Dr. Goldstein conceded that he had not specifically mentioned this theory or opinion in his two-page report prepared at the behest of plaintiff's counsel. Dr. Goldstein also admitted that he did not have any reason to question the veracity or competence of the individuals who conducted the analysis of plaintiff's urine and blood in California. Finally, Dr. Goldstein confirmed that the phrase "within a reasonable degree of medical probability" was not included in support of the statements or opinions he expressed in his written report.

The trial judge upheld defense counsel's objection and declined to permit Dr. Goldstein to opine that plaintiff may have ingested Rohypnol while at the party at defendants' home. The court found Dr. Goldstein's opinions were not based on accepted medical or scientific studies or otherwise admissible based on his lack of clinical experience in treating patients who have ingested Rohypnol or similar benzodiazapene-like agents.

Even without this substantive impediment, the court also found the opinions testified to by Dr. Goldstein at the N.J.R.E. 104 hearing were not reflected within the four-corners of his written report, which had been given to defense counsel more than two years earlier and had not been amended before trial.

II

We address first the court's decision to exclude the proffered expert opinion testimony of Dr. Goldstein. To be admissible, expert testimony must satisfy three criteria:

 
(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.

[Polzo v. County of Essex, 196 N.J. 569, 582 (2008) (quotation marks omitted) (internal citations omitted); see also N.J.R.E. 702.]

N.J.R.E. 703 addresses the basis of the expert's opinion:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

As the Court noted in Polzo, "[t]he corollary of [N.J.R.E. 703] is the net opinion rule, which forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data." Polzo, supra, 196 N.J. at 583 (citations omitted).

With these principles in mind, we are satisfied that Dr. Goldstein's proffered testimony is merely a net opinion unsupported by factual or reliable scientific data. Dr. Goldstein does not have clinical experience in the treatment of patients suffering from the aftermath of ingesting Rohypnol or similar benzodiazapene-like agents. He did not counterbalance his lack of experience with generally accepted medical studies that support his speculations about the cause of plaintiff's comatose state. Based on these findings, the trial court correctly excluded this witness from testifying as an expert in this field of medicine. Because we sustain the court's ruling on this basis, we need not and do not reach the alternative ground for exclusion based on the deficiencies identified in Dr. Goldstein's written report. Plaintiff's alternative argument in support of admitting Dr. Goldstein's testimony as plaintiff's treating physician lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Plaintiff's argument seeking a new trial based on the quantum of compensatory damages awarded by the jury is equally without merit. In rejecting plaintiff's motion for a new trial on this issue,2 Judge Buchsbaum correctly relied on the standard we articulated in Glowaki v. Underwood Memorial Hospital, 270 N.J. Super. 1 (App. Div. 1994):

A trial judge should not interfere with the quantum of damages assessed by a jury unless it is so disproportionate to the injuries and resulting disabilities as to shock the conscience and to convince the judge that to sustain the award would be manifestly unjust. In making this determination, the judge must accept the medical evidence in the light most favorable to the [the party defending the verdict], and must presume that the jury believed the [party defending the verdict's] claims and the testimony of her supporting witnesses. Thus, the jury's verdict should not be overturned except upon a carefully reasoned and factually supported and articulated determination that entry of the judgment would constitute a manifest denial of justice.

[Id. at 14-15 (internal citations omitted) (emphasis added).]

Here, Judge Buchsbaum emphasized plaintiff's complete physical recovery after her hospitalization as a principal factor supporting the jury's damage award. The only evidence of any lingering effect was plaintiff's claim that she had difficulty trusting people. Judge Buchsbaum discounted this claim, however, reasoning that "[g]iven the other evidence, that she was behaving in a normal fashion and had gone on to lead her life, . . . [the jury could have found] that that was not compensable under the circumstances."

The judge also found that evidence of plaintiff's experience with alcohol prior to this incident may have influenced more than just how the jury apportioned responsibility between plaintiff and defendants. According to Judge Buchsbaum, this evidence could have also affected how the jury evaluated plaintiff's testimony concerning how much alcohol she consumed that night, and whether the alcohol was the only factor that caused her coma:

So we have a situation where the young woman was in coma for five days, for reasons that were never clear on the record made to the jury, and the cause of which is speculative, and did not -- there was no clear tie in between that reaction and what necessarily happened with the ingestion of a certain amount of alcohol.

The court also found that defense evidence of plaintiff boasting of being known in her former community in Illinois as "Whiskey Girl" could have been used by the jury to find that she may have voluntarily consumed significantly more alcohol than her testimony would otherwise indicate. This may have caused the jury to view plaintiff in a less sympathetic light and question whether her coma was caused, at least in part, by factors other than defendants' negligent supervision and failure to act promptly once they discovered plaintiff's degree of inebriation.

Our standard of review of the jury's verdict is similar to the one employed by the trial court in all but one key respect. As an appellate court removed from the actual trial, we must defer to the trial court's "feel of the case." Dolson v. Anastasia, 55 N.J. 2, 7 (1969) (citation and internal quotation marks omitted). Given the evidence presented to the jury and affording the deference due to the trial court, we see no basis to conclude, by clear and convincing evidence, that the damage award is so deficient that it constitutes a clear "miscarriage of justice." City of Long Branch v. Jui Yung Liu, 203 N.J. 464, 492 (2010) (citation and internal quotation marks omitted).

1 Rohypnol is a trade name for flunitrazepam, "a powerful benzodiazepine sedative and hypnotic drug . . . that is not licensed for use in the United States but is used medically in other countries and that is a frequent illicit drug of abuse." Merriam-Webster's Online Medical Dictionary, http://www.merriam-webster.com (last visited February 28, 2011).

2 Rule 2:5-3(b) requires appellant to provide the stenographic transcript of the entire proceeding before the trial court, "including the reasons given by the trial judge in determining a motion for new trial." In the interest of justice, we requested, after the appeal was argued, that appellant's counsel submit the transcript of the ruling on plaintiff's motion for a new trial, rather than declining to consider this issue on appeal. See Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004).