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Superior Court of New Jersey, Appellate Division.

ADELE KONOP and RICHARD KONOP, her husband, Plaintiffs–Appellants, v. ELLEN J. ROSEN, M.D., Defendant–Respondent.

DOCKET NO. A–2341–12T3

    Decided: March 14, 2014

Before Judges Messano, Hayden and Rothstadt. G. Martin Meyers argued the cause for appellants (Law Offices of G. Martin Meyers, P.C., attorneys;  Mr. Meyers, on the brief). Craig Combs argued the cause for respondent (Giblin & Combs, L.L.C., attorneys;  Christina M. Scarpa, on the brief).

This medical malpractice action is before us for a second time.   In a previously published opinion, we reversed the grant of summary judgment that dismissed the complaint of plaintiff, Adele Konop, alleging medical negligence in the performance of a colonoscopy by defendant, Dr. Ellen J. Rosen.   See Konop v. Rosen, 425 N.J.Super.   391 (App.Div.2012).1

We need not review at length the circumstances detailed in our prior opinion, except to note that the issue presented then was the admissibility of “a notation that appeared in a consultation report prepared by Dr. Victor S. Flores upon plaintiff's initial admission to the hospital[ ]” following the colonoscopy.  Id. at 397.   The report contained a statement that plaintiff was “moving too much at [the] time of [the] procedure.”  Id. at 400.   It was the opinion of plaintiff's expert that such excessive movement reflected a deviation from accepted standards of medical care because it indicated an inadequate level of anesthesia had been maintained during the course of the colonoscopy.  Id. at 397.

The source of the notation was disputed.  Id. at 400.   We determined that if the statement had been made by defendant, it was admissible as an exception to the hearsay rule.  Id. at 421;  and see N.J.R.E. 803(b)(1), (c)(6).   However, because admissibility hinged on whether the statement was indeed made by defendant, we concluded that the jury, not the judge, was required to determine that factual issue.  Id. at 420.   We further provided guidance as to a proper limiting instruction if the matter proceeded to trial:

[T]he judge must provide a limiting instruction that the disputed notation may only be considered if the jury finds by a preponderance of the evidence that defendant made the statement.   The parties are free to address with the judge whether a preliminary interrogatory should be submitted to the jury since the notation provides the only support for [plaintiff's expert's] opinion that defendant deviated from accepted medical standards.

[Id. at 422 (citations omitted).]

The case proceeded to a jury trial.   Plaintiff, who had no knowledge of what occurred during the procedure, or whether defendant had made the challenged statement to Flores, testified.   Flores, who was a first-year resident at the time of plaintiff's admission to the hospital, was unavailable for trial, and his deposition testimony was read for the jury.2  Flores hand wrote the report contemporaneously and believed its contents were accurate, but he could not recall the source of the information.   Flores testified that routinely he did not speak to the “treating physician,” but he could not specifically recall whether he spoke to defendant.   He typically obtained his information from his “supervisor, [his] senior, and [his] attending,” in this case Dr. Edward McLean, who “have already been told what's going on.” 3

Defendant also testified.   She described the procedure, noting that an anesthesiologist and nurse were present.   She noted that plaintiff suffered from diverticulosis and a thickening fold in her descending colon.   Defendant stated that plaintiff “appeared comfortable during the entire procedure.”   However, plaintiff immediately complained of distress after the colonoscopy.   Defendant took some initial steps which were unsuccessful and determined an x-ray was required.   Plaintiff was transported to the hospital.

Defendant went to the hospital as well and completed the inpatient forms, setting forth plaintiff's medical history.   At this point, defendant believed plaintiff's diverticulosis had created a weak spot in the colon that may have resulted in a perforation.   She informed McLean of her suspicion.   Plaintiff ultimately underwent an emergency resection performed by McLean.

Defendant denied that plaintiff was “moving too much” during the colonoscopy, and that she ever made such a statement to anyone.   Asked to review all her reports, the following colloquy occurred:

Q: Now, nowhere in any of this have you indicated that [plaintiff] was moving too much during this procedure.

A: No.

Q: Okay. Was that a factor at all in your thought process to what had caused the perforation?

A: No.

Q: Okay. And as you indicated, she didn't move too much.

A: That is correct.

Defendant did not recall specifically speaking to Flores.

The anesthesiologist, Dr. Sujatha Murthy, also testified.   At the time of plaintiff's procedure, she was employed by the Hanover Surgery Center (Hanover), where the colonoscopy took place.   Murthy noted that the nurse assisting during plaintiff's procedure was Chere McNeil.   It suffices to say that, while Murthy had no specific recollection of plaintiff's colonoscopy, her review of the medical notes showed nothing “untoward” occurred, nor did the notes reflect that plaintiff was moving too much during the procedure.

McLean testified and was shown the consultation report prepared by Flores.   He acknowledged his pre-trial deposition testimony, in which he indicated probably discussing the report with Flores because he “work[ed] pretty closely with the residents.”   However, McLean stated that defendant never “impart[ed] ․ information that the perforation resulted because the patient was moving too much[.]”

Following our guidance, the trial judge appropriately charged the jury and asked it to determine if plaintiff had proven by a preponderance of the evidence that defendant “made a statement at [the h]ospital ․ that [plaintiff] was ‘moving too much’ during the colonoscopy procedure performed earlier that day?”   The jury unanimously answered the question, “No.” As a result, an order of disposition was entered on October 2, 2012, dismissing plaintiff's complaint.

Plaintiff moved for a new trial.   Rule 4:49–1.   The judge denied the motion and this appeal followed.

The issue presented before us is discrete.   Plaintiff contends she was entitled to a new trial because the judge should have provided the jury with an “adverse inference” charge, given defendant's failure to produce nurse McNeil as a witness.   See Model Jury Charge (Civil) 1.18, “Witness — Failure of a Party to Produce;  Adverse Inference” (Revised 8/2011).   Defendant counters by arguing that plaintiff failed to follow the proper procedure to request such a charge, and also failed to demonstrate the predicate circumstances entitling her to such an instruction.   We agree with defendant and affirm.


The issue first arose after defense counsel had completed his closing argument.   Before beginning his summation and outside the jury's presence, plaintiff's counsel stated that he intended to refer to McNeil as “a missing witness” and asked the judge for an adverse interference instruction.   Counsel noted that defendant's expert witness had testified that, during a colonoscopy, the nurse would be the first person to detect if the patient was moving.

The judge noted that defendant acknowledged McNeil was still employed by Hanover.   Plaintiff then sought to recall defendant as a witness, which the judge denied.   The judge concluded the request to charge was untimely and “[t]here[ was] no foundation whatsoever” for the instruction.   During his summation and without objection, plaintiff's counsel told the jury, “the nurse who was in the best position, you haven't heard from her.”   The judge then charged the jury without any adverse inference instruction.

After the verdict, when plaintiff moved for a new trial, she argued that the request for an adverse inference charge was properly made before her counsel's summation.   She also contended that defendant was one of the “owners” of Hanover, and McNeil worked for her.   Plaintiff noted that defendant's answers to interrogatories identified McNeil as an “eye witness” who worked for Hanover.4  The motion was supported by a portion of defendant's deposition testimony, in which she identified her practice as “Affiliates in Gastroenterology,” or AIG. Plaintiff attached an internet page in which AIG stated that most of its “procedures [were] performed” at Hanover or another facility, in which AIG's physicians had “an ownership interest with AmSurg, a national leader in out-patient surgical and endoscopic centers.”

Additionally, plaintiff supplied the certification of a private investigator, Jeffrey A. Oster, who had located McNeil, spoke to her and confirmed she still was employed by Hanover.   The certification did not disclose if Ostrer asked McNeil any questions regarding plaintiff's colonoscopy, or whether McNeil had any information whatsoever regarding the incident.   Plaintiff argued that because both defendant and Murthy testified as having no specific recollection of plaintiff's colonoscopy, McNeil, as the only other person in the room, could provide “significant” testimony.5

The judge noted that none of the information about McNeil's whereabouts, her continued employment at Hanover or defendant's alleged interest in the center was produced at trial when plaintiff made her request for a Clawans charge.   The judge also found it was improper to have made the request after defendant's summation.   He found plaintiff's argument to be “without merit,” and denied the motion.6


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).  “This standard applies whether the motion is based upon a contention that the verdict was against the weight of the evidence, or is based upon a contention that the judge's initial trial rulings resulted in prejudice to a party.”  Hill v. N.J. Dept. of Corrections, 342 N.J.Super. 273, 302 (App.Div.2001) (citing Crawn v. Campo, 136 N.J. 494, 510–12 (1994)).  “On appeal, we consider essentially the same standard.”  Ibid. (citing R. 2:10–1).   If there was legal error during the trial, we also accord deference to the trial judge's evaluation of the prejudice that resulted, and whether that prejudice contributed to an unjust result.  Ibid. (citing Crawn, supra, 136 N.J. at 512).


In State v. Clawans, 38 N.J. 162, 170–72 (1962), the Court explained:

Generally, failure of a party to produce ․ proof which ․ would serve to elucidate the facts in issue, raises a natural inference that the party so failing fears exposure of those facts would be unfavorable to him.   But such an inference cannot arise except upon certain conditions and the inference is always open to destruction by explanation of circumstances which make some other hypothesis a more natural one than the party's fear of exposure․

For an inference to be drawn from the nonproduction of a witness it must appear that the person was within the power of the party to produce and that his testimony would have been superior to that already utilized in respect to the fact to be proved.

For obvious reasons the inference is not proper if the witness is for some reason unavailable or is either a person who by his position would be likely to be so prejudiced against the party that the latter could not be expected to obtain the unbiased truth from him, or a person whose testimony would be cumulative, unimportant or inferior to what had already been utilized.

[ (Citations omitted).]

“The party seeking the ․ charge must notify the opposing party and the judge, outside of the presence of the jury, must state the name of the witness or witnesses not called, and must set forth the basis for the belief that the witness or witnesses have superior knowledge of relevant facts.”  State v. Hill, 199 N.J. 545, 560–61 (2009).  “The better practice ․ is for the party seeking to obtain a charge ․ to advise the trial judge and counsel out of the presence of the jury, at the close of his opponent's case,” because “[t]his would accord the party accused of nonproduction the opportunity of either calling the designated witness or demonstrating to the court by argument or proof the reason for the failure to call.”  Clawans, supra, 38 N.J. at 172.

If the request is properly made,

a court must demonstrate that it has taken into account all relevant circumstances by placing, on the record, findings on each of the following:

(1) that the uncalled witness is peculiarly within the control or power of only the one party, or that there is a special relationship between the party and the witness or the party has superior knowledge of the identity of the witness or of the testimony the witness might be expected to give;

(2) that the witness is available to that party both practically and physically;

(3) that the testimony of the uncalled witness will elucidate relevant and critical facts in issue[;] and

(4) that such testimony appears to be superior to that already utilized in respect to the fact to be proven.

[Hill, supra, 199 N.J. at 561–62 (alteration in original) (citing State v. Hickman, 204 N.J.Super. 409, 414 (App.Div.1985), certif. denied, 103 N.J. 495 (1986)).]

These essential principles also apply to civil trials.  Nisivoccia v. Ademhill Associates, 286 N.J.Super. 419, 425 (App.Div.1996) (citing Clawans, supra, 38 N.J. at 171);  and see Wittter by Witter v. Leo, 269 N.J.Super. 380, 392 (App.Div.) (applying Clawans factors and concluding that an adverse inference charge should have been given because the defendant's sixteen-year-old son was not unavailable to her, and his testimony would have “elucidate[d] the facts in issue” and been “superior to that already utilized”) (quoting Clawans, supra, 38 N.J. at 170–71), certif. denied, 135 N.J. 469 (1994).

In Cohen v. Community Medical Center, 386 N.J.Super. 387, 401 (App.Div.2006), the plaintiff requested an adverse inference charge due to the “failure of [the] defendants ․ to produce ․ the triage nurse who evaluated plaintiff when ․ presented to the emergency room.”   The nurse had made entries in the hospital record that were contrary to testimony of other defense witnesses, including another nurse.  Id. at 402.   The plaintiff served a notice in lieu of subpoena upon the defendant hospital, the nurse's employer.   Ibid. The hospital did not respond until the day of trial, at which time its attorney indicated the nurse would not be produced because she no longer worked for the hospital or lived in-state.  Ibid. The trial court denied the plaintiff's request, finding defendant “no longer had any control over” the nurse.  Ibid.

Although our reversal and grant of a new trial rested on other grounds, we concluded that the jury may have found the nurse's testimony superior to that of the other defense witnesses.  Id. at 403.   We ordered the hospital to provide the plaintiff all information regarding the nurse's whereabouts prior to any retrial, and if the plaintiff could not locate and depose the nurse, we held that sanctions should be considered by the trial judge.  Id. at 403.   We also noted that the plaintiff's decision not to depose the nurse before trial “may have been a strategic choice and premised on the belief she was still employed by [the] defendant” hospital.  Ibid.

Most recently, in Washington v. Perez, 430 N.J.Super. 121, 131 (App.Div.), certif. granted, 215 N.J. 487 (2013), we reversed the trial judge's decision to provide an adverse inference charge to the plaintiff.   There, plaintiff's expert, testifying by video, referenced a finding made by one of the defendant's expert doctors.  Id. at 126.   The defendant sought to redact this reference, indicating that he had no intention to call the expert as a witness.  Ibid. The judge denied the request, the defendant produced neither of his expert doctors, and the judge provided the jury with an adverse inference charge regarding the absence of defense expert testimony.  Id. at 127.

We reviewed the factors as explained in Hill, supra, and noted only two supported giving the adverse inference charge, specifically, that the witnesses were not unavailable to the defendant and either expert “would likely elucidate relevant and critical facts in issue․”  Id. at 130 (citation omitted).   However, we concluded that neither expert was “ ‘peculiarly within the control or power of only the one party,’ because [the] plaintiff's counsel was entitled to call the defense experts” who had been identified in discovery.  Ibid. (quoting Hill, supra, 199 N.J. at 561) (citing Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 301 (2006)).   We also noted that the plaintiff failed to demonstrate the fourth Hill factor applied, i.e., that the uncalled experts' testimony was “superior,” because the proffer was “corroborative or cumulative” of the disputed deposition testimony of the plaintiff's own expert.  Id. at 130–31.


In this case, the judge did not “plac[e], on the record,” his “findings on each of the” relevant factors for consideration.  Hill, supra, 199 N.J. at 561.   We therefore conduct our review de novo.   See Paradise Enterprises, Ltd. v. Sapir, 356 N.J.Super. 96, 103 (App.Div.2002) (quoting Kavanaugh v. Quigley, 63 N.J.Super. 153, 158 (App.Div.1960)) (“[D]e novo review is required” when “ ‘the [trial court's] exercise of the legal discretion lacks a foundation․  When this occurs, it is the duty of the reviewing court to adjudicate the controversy in light of the applicable law in order that a manifest denial of justice be avoided.’ ”)

Plaintiff arguably met her burden regarding the second of the four Hill factors.   Although defense counsel claimed no knowledge of McNeil's whereabouts when the issue arose at trial, she had previously been identified as an “eyewitness” employed at Hanover.7  It was reasonable to conclude that she was “available to [defendant] both practically and physically.”  Hill, supra, 199 N.J. at 561 (emphasis added).

Whether plaintiff met her burden on factors three and four, however, is less clear.   It was undisputed that McNeil was the only other person present during the procedure, and neither defendant nor Murthy had a clear recollection of the specific procedure.   In that regard, McNeil's testimony might have “elucidate [d] relevant and critical facts in issue” in a manner “superior to that already utilized in respect to the fact to be proven.”  Hill, supra, 199 N.J. at 561–62;  Cohen, supra, 386 N.J.Super. at 401–02.

However, we have said that “Clawans did not hold that the charge was to be given merely because a person who apparently knew something about some facet of the case did not appear and testify.”  Wild v. Roman, 91 N.J.Super. 410, 414 (App.Div.1966).   As already noted, plaintiff's counsel specifically told the judge that deposing McNeil would be “futile,” because he did not “anticipate [he] would get truthful information.”

Most importantly, “[t]he failure to call a witness available to both parties has been said to preclude the raising of an inference against either.”   Clawans, supra, 38 N.J. at 171 (citation omitted);  and see Model Jury Charge (Civil) 1.18, supra (advising the jury not to draw an adverse inference if the witness “is equally available to both parties”).   Whether the witness is “available” to the party requesting the charge is assessed by application of the first Hill factor.   In this case, plaintiff had to demonstrate that McNeil was “peculiarly within the control or power of only ․ [defendant],” or “there [was] a special relationship between [defendant] and the witness,” or “[defendant had] superior knowledge of the identity of the witness or of the testimony the witness might be expected to give[.]”  Hill, supra, 199 N.J. at 561.

Defendant clearly did not have “superior knowledge” of McNeil's identity since she was disclosed as an “eyewitness” in interrogatories.   Nor did defendant have superior knowledge of her likely testimony, because plaintiff conceded that she could have, but chose not to, depose or even interview McNeil.   Unlike the witness in Cohen, supra, who was an employee of the defendant hospital that was defending itself at trial, McNeil was an employee of Hanover, not defendant, and Hanover was never a defendant in this litigation.8

Nor did plaintiff demonstrate at trial that McNeil was “peculiarly” within defendant's control or a “special relationship” existed between them.   When the request for the charge was made at trial, the record demonstrated only that McNeil was employed by Hanover and defendant, who was employed by AIG, frequently performed colonoscopies on her patients at that facility.   In short, our consideration of the Hill factors convinces us that plaintiff failed to demonstrate she was entitled to an adverse inference charge because of McNeil's non-production.9

Because the judge did not commit legal error at the trial, we move on to consider whether plaintiff was nevertheless entitled to a new trial based upon the additional information she provided to the judge when she moved for a new trial.   Although plaintiff was not technically seeking to admit the information regarding defendant's ownership interest in Hanover and McNeil's continued employment there as evidence before a new jury, she was asking the judge to consider these additional facts to conclude she was entitled to the adverse inference instruction she had sought.

“When a motion for a new trial is made under [Rule ] 4:49–1 to produce additional evidence, such a motion should be granted when that evidence would probably alter the judgment and by due diligence could not have been discovered before the court announced its decision.”  Quick Chek Food Stores v. Twp. of Springfield, 83 N.J. 438, 445 (1980) (citation omitted) (emphasis added).   The “burden of showing diligence ․ is substantial.”  Id. at 446 (citation omitted).   A motion for a new trial on the grounds of newly discovered evidence is “addressed to the sound discretion of the trial court and will not be disturbed unless that discretion has been clearly abused.”  Ibid. (citations omitted).

In this case, plaintiff failed to assert any explanation why the information she furnished in support of her new trial motion could not have been supplied to the judge during the trial.   On this ground alone, we must conclude denial of her motion for a new trial was proper.

But, even if we overlooked the lack of diligence, we cannot say the judge mistakenly exercised his discretion by denying the motion for a new trial.   Defendant had some ownership interest in Hanover, but the extent of that interest and whether defendant exerted any control over employees like McNeil remained undeveloped.   As already noted, Hanover was not a defendant in this litigation, and on the complete record, we cannot conclude that McNeil was “peculiarly within the control or power of only ․ [defendant],” or “there [was] a special relationship between [defendant] and [McNeil].”  Hill, supra, 199 N.J. at 561.


Although we affirm based upon our review of the merits of plaintiff's argument, it is appropriate to comment on the procedural aspects of the issue.   Plaintiff claims that she was not required to make a request for the charge after defendant rested and before defense counsel's summation.   She claims our holding in Nisivoccia supra, supports this argument.   We disagree.

Nisivoccia specifically dealt with “whether [defense counsel] was required to seek ․ a [Clawans ] charge or court approval of his comments before being permitted to comment on [a witness's] nonappearance at the trial.”   286 N.J.Super. at 429.   We concluded that the attorney need not have asked for the charge or sought approval “before being permitted to comment on [the witness's] nonappearance․”  Ibid. We further stated

that “the better practice,” in accordance with Clawans and Wild, suggests that an attorney who seeks to comment upon the nonproduction of a witness advise the trial judge and opposing counsel of his intention before summation.   This will alert the judge to a potential inference issue and provide a final opportunity to the opposing party either to seek to reopen its case or to present an explanation in a form of rebuttal.


In short, Nisivoccia does not support the proposition that an attorney seeking an adverse inference charge from the court may wait to make the request until after his adversary has delivered a closing argument.   In this case, plaintiff not only sought to comment on McNeil's non-appearance;  she requested an adverse inference charge.   As such, the Clawans court clearly identified the “better practice” in such circumstances “is for the party seeking to obtain a charge ․ to advise the trial judge and counsel out of the presence of the jury, at the close of his opponent's case.”  Clawans, supra, 38 N.J. at 172.



1.  FN1. As we did in our prior opinion, we shall refer to plaintiff in the singular since the claims of her husband, plaintiff Richard Konop, are wholly derivative of his wife's claim.

2.  FN2. This is not reflected in the transcripts provided;  however, both parties acknowledge this occurred.

3.  FN3. The transcript of plaintiff's expert's testimony was omitted from the record.

4.  FN4. The interrogatories are in the record.   We note that, contrary to her testimony, Murthy is identified as being employed by Morristown Anesthesiology.

5.  FN5. Although at another point in the argument, plaintiff's counsel stated that he did not depose McNeil because it would be “futile,” and he did not “anticipate [he] would get truthful information” from her.

6.  FN6. Plaintiff's notice of appeal seeks review of only the order denying the motion for a new trial.

7.  FN7. At oral argument before us, defense counsel acknowledged having interviewed McNeil before or during the trial.

8.  FN8. There was extensive discussion of this issue when plaintiff moved for a new trial.   The judge caused a search to be made of the case file which revealed that, contrary to plaintiff's counsel's apparent belief, Hanover was never a party to the suit.

9.  FN9. To the extent plaintiff makes the argument that the judge based his ruling on the timing of the request and refused her the opportunity to address the merits of the argument, we reject the contention.


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