MICHELE NAUSE v. ATLANTICARE REGIONAL MEDICAL CENTER MAINLAND CAMPUS

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2649-17T2

DAVID and MICHELE NAUSE,
H/W,

           Plaintiffs-Appellants,

v.

ATLANTICARE REGIONAL
MEDICAL CENTER –
MAINLAND CAMPUS, and
ATLANTICARE HEALTH
SYSTEMS, INC.,

     Defendants-Respondents.
__________________________

                    Submitted January 15, 2019 – Decided February 4, 2019

                    Before Judges Geiger and Firko.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Atlantic County, Docket No. L-0480-14.

                    Swartz Culleton PC, attorneys for appellants (Matthew
                    E. Gallagher, on the briefs).

                    Fox Rothschild LLP, attorneys for respondents (Eric M.
                    Wood, on the briefs).
PER CURIAM

      Plaintiffs David and Michelle Nause appeal from a judgment of no cause

of action in this medical malpractice action. We affirm.

      Plaintiff1 was a patient at defendant AtlantiCare Regional Medical Center

– Mainland Campus (ARMC) for two weeks. He developed pressure ulcers on

his heel and buttocks during his hospitalization, one of which deteriorated to

stage IV.    Plaintiffs allege defendants provided negligent treatment and

monitoring proximately causing the development and progression of the

pressure ulcers. Plaintiffs did not name the attending or treating physicians as

individual defendants; they sue the hospital vicariously for the alleged

negligence of its nursing staff, claiming plaintiff developed pressure ulcers as a

direct result of that negligence.

      Prior to trial, plaintiffs issued a notice to produce Kathleen Henry, R.N.,

a wound and ostomy specialist employed by ARMC, to testify at trial. Nurse

Henry did not appear to testify as scheduled because she was out-of-state caring

for her brother who had just suffered a stroke and was hospitalized, while at the

same time her mother was ill and her sister was hospitalized with cancer.



1
 References to plaintiff in this opinion refer only to David Nause. His wife,
Michelle Nause's claims are limited to loss of consortium.
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      As a result of Nurse Henry's unavailability, plaintiffs read sections of her

discovery deposition testimony to the jury. The deposition read-in did not

include any cross-examination of Nurse Henry by counsel for ARMC.

      While the trial was underway, plaintiffs hired a private investigator to

determine if Nurse Henry was truly unavailable to testify. The investigator

discovered Nurse Henry had returned to work at ARMC several days after her

scheduled appearance date. Plaintiffs requested an adverse inference charge

based on attempted spoliation and sought monetary sanctions for the costs

incurred for the private investigator. Plaintiffs also sought to question Nurse

Henry at trial about her supposed unavailability.

      Plaintiffs did not allege defense counsel was at fault for Nurse Henry's

non-appearance. Nor did they show that ARMC played any part in her non-

appearance.

      Following oral argument, the trial judge denied plaintiffs' demand for an

adverse inference charge, monetary sanctions, and questioning of the nurse

regarding her unavailability, noting deposition testimony had been read to the

jury and she would be testifying "live for the jury to see." The judge found

Nurse Henry's conduct was not "so egregious" as to warrant sanctions against




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ARMC. Instead, the judge ordered Nurse Henry to appear to provide live

testimony in court, which she did.

      During her testimony, plaintiffs attempted to question Nurse Henry

regarding the reason for her prior non-appearance. The trial judge sustained

defendants' objection to that line of questioning, finding it "irrelevant as to

whether or not she was available."

      Two other ARMC nurses and a nursing and wound care expert also

testified on behalf of plaintiffs. During cross-examination, plaintiffs' expert

acknowledged plaintiff had the following medical conditions when admitted to

ARMC: hypotension, diabetes, chronic obstructive pulmonary disease, morbid

obesity, complex tachycardia, sepsis, hypotensive shock, and system failure.

She agreed that as a result of having these conditions, plaintiff was at risk for

developing skin breakdown and could develop pressure sores even if the nurses

did everything right. Plaintiffs' expert was unable to testify that plaintiff would

not have suffered the same skin breakdown even if everything that should have

been done by ARMC's nurses had been done.

      After plaintiffs rested, defendants moved for involuntary dismissal

pursuant to Rule 4:37-2. The trial judge issued a lengthy oral decision denying




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the motion. A nursing and wound care expert and an internal medicine expert

testified on behalf of defendants.

       Ultimately, the jury found ARMC was negligent, by a vote of seven to

one, but that ARMC's negligence was not a proximate cause of plaintiff's

injuries, by a vote of eight to zero. Accordingly, the trial court entered a

judgment of no cause of action in favor of defendants. This appeal followed.

       Plaintiffs argue the trial court abused its discretion by refusing to allow

them to question Nurse Henry about her supposed unavailability and by denying

their request for sanctions and an adverse inference charge. They seek a new

trial, the imposition of sanctions, and an adverse inference charge during the

retrial.

       We first address the trial court's preclusion of questioning Nurse Henry

about the reason for her non-appearance. Plaintiffs did not show that her non-

appearance was caused, suggested, or influenced by defendants or their counsel.

On the contrary, her non-appearance appears to have been the result of an out-

of-state family medical emergency. On this record, such questioning had no

probative value on the central issues of whether ARMC nurses deviated from

the standard of care, and if so, whether such deviation proximately caused




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plaintiff's injuries. Nor do we perceive it would it have had significant impact

on her credibility.

      Trial courts are afforded broad discretion with regard to exercising control

over cross-examination of a witness. State v. Jenewicz,  193 N.J. 440, 467

(2008); see also N.J.R.E. 611 (stating "[t]he court shall exercise reasonable

control over the mode and order of interrogating witnesses and preventing

evidence"). We discern no abuse of discretion by the trial court. In any event,

we deem the alleged error to have been harmless. See R. 2:10-2 ("Any error or

omission shall be disregarded by the appellate court unless it is of such a nature

as to have been clearly capable of producing an unjust result.").

      We next address the trial court's denial of an adverse inference charge.

When a party fails to honor a notice in lieu of subpoena, they subject themselves

to the list of sanctions referenced in Rule 1:2-4(a). Gonzalez v. Safe & Sound

Sec.,  185 N.J. 100, 115 (2005). With regard to failures to appear, Rule 1:2-4(a)

provides in relevant part:

             If without just excuse or because of failure to give
             reasonable attention to the matter, no appearance is
             made on behalf of a party . . . on the day of trial, . . . the
             court may order any one or more of the following: . . .
             (b) the payment by the delinquent attorney or party or
             the party applying for the adjournment of the
             reasonable expenses, including attorney's fees, to the
             aggrieved party; (c) the . . . striking of the answer and

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            the entry of judgment by default . . . ; or (d) such other
            action as it deems appropriate.

We review the imposition or denial of sanctions for abuse of discretion.

Gonzalez,  185 N.J. at 115.

      One of the sanctions the court may impose is an adverse inference charge.

Id. at 118. An "adverse inference is not to be utilized when the witness is

unavailable." Ibid. An adverse inference charge is also inappropriate when the

witness testifies. This is true because the charge is administered "during the

underlying litigation as a method of evening the playing field where evidence

has been hidden or destroyed." Rosenblit v. Zimmerman,  166 N.J. 391, 401

(2001). Indeed, its essential function "allows a jury in the underlying case to

presume that the evidence the spoliator destroyed or otherwise concealed would

have been unfavorable to him or her." Id. at 401-02.

      Here, there was no spoliation of evidence. The jury heard both Nurse

Henry's discovery deposition testimony and her live testimony subject to cross

examination. Plaintiffs' ability to present their case was not impaired; in fact

we are persuaded this series of events inured to their benefit. Whatever value

plaintiffs' perceived in Nurse Henry's testimony was presumably captured

between the deposition read-in and the live testimony. In addition, plaintiffs

have not shown defendants attempted to prevent or dissuade Nurse Henry from

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testifying, much less acted willfully or deliberately in disregard of the court's

authority. Kosmowski v. Atl. City Med. Ctr.,  175 N.J. 568, 575 (2003). For

these reasons, we discern no abuse of discretion by the trial court.

        Last, we address the trial court's denial of monetary sanctions. "Our

standard of review of the imposition of sanctions requires us to abstain from

interfering with those discretionary decisions unless an injustice has been done."

Mandel v. UBS/PaineWebber, Inc.,  373 N.J. Super. 55, 82-83 (App. Div. 2004)

(quoting Cavallaro v. Jamco Prop. Mgmt.,  334 N.J. Super. 557, 571 (App. Div.

2000)). While we recognize plaintiffs incurred some expense hiring a private

investigator to determine if Nurse Henry was available to testify, the

circumstances militated against awarding monetary sanctions. 2 As we have

indicated, defendants did not bring about or encourage Nurse Henry's initial

non-appearance. Plaintiffs did not demonstrate defendants deliberately violated

any court rule or court order or otherwise acted in bad faith. The trial judge's

ruling requiring Nurse Henry to appear prevented plaintiffs from suffering any

prejudice or injustice. We therefore conclude the denial of monetary sanctions

was not an abuse of discretion.

        Affirmed.


2
    The record does not reflect the cost incurred for the private investigator.
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