DIANA FRANCO MICHAEL FRANCO JR DIANA FRANCO MICHAEL FRANCO v. GREGORY SULLIVAN BRENDAN SULLIVAN DRS SULLIVAN SULLIVAN (2011)

Plaintiffs, Diana Franco as administrator ad prosequendum of the estate of Michael Franco, Jr. and Diana Franco and Michael Franco, individually, appeal an April 19, 2010 order of judgment in favor of defendants Richard G. Binetti, M.D. and Jared Sullivan, M.D. and a June 21, 2010 order denying plaintiffs' motion for a new trial in their obstetrical malpractice action.   On appeal, plaintiffs argue that the judge erred in admitting evidence of two prior disciplinary actions against Barry Cohen, M.D., who appeared as a fact and expert witness on plaintiffs' behalf, and that the error warranted a new trial.   Additionally, plaintiffs argue that the trial judge erred in not investigating a statement by the jury foreman, obtained by the mother of plaintiff Diana Franco after the trial had concluded, that at a time when the jury was deadlocked four to four, one juror suggested that all jurors return a no cause verdict and then let plaintiffs appeal the case.

I.

The record discloses that, over the weekend commencing on Friday, December 10, 2004, Diana Franco (Franco), who was twenty-seven weeks pregnant, began to experience vomiting, diarrhea, and cramping.   On Sunday, December 12, she called her treating obstetrician, Dr. Binetti, who was unavailable, and she was referred to a covering physician, Dr. Sullivan, who allegedly prescribed over-the-counter remedies.   Franco testified that Dr. Sullivan told her that he would call Dr. Binetti on Monday and inform him of Franco's condition.   Dr. Sullivan testified that he instructed Franco to call her physician on Monday so that he was aware of what had transpired and so it could be reflected on her chart.

In any case, no contact with Dr. Binetti was made on Monday, December 13.   At approximately 4:00 p.m. on Tuesday, December 14, Franco telephoned Dr. Binetti and explained her symptoms.   At some point, Franco's next appointment with the doctor was moved to the upcoming Friday, December 17.   However, on Thursday, Franco was found by her husband on the floor at their home with blood coming from her mouth, having suffered a seizure.   She was transported by ambulance to Chilton Memorial Hospital, where she was treated by Dr. Cohen, the on-call obstetrician at that facility.   She was diagnosed by Dr. Cohen as suffering from eclampsia.   A determination was made to perform an emergency Caesarian section, and a boy, Michael Franco, Jr., was delivered.   However, he died on January 8, 2005 as the result of necrotizing enterocolitis arising from his premature condition.

At trial, Franco testified that she informed both Dr. Sullivan and Dr. Binetti in her telephone calls with them that she was experiencing a severe headache in addition to her gastrointestinal symptoms.   Both doctors deny that fact, noting that a persistent headache is a symptom of preeclampsia, a potentially life-threatening condition and, if informed of a headache, they would have ordered immediate testing to determine if the condition existed.   Dr. Sullivan had no record or recollection of Franco's call;  Dr. Binetti's record of his conversation with Franco did not mention headache.

In a report addressed to plaintiffs' counsel, dated February 7, 2008, Dr. Cohen described conversations with Dr. Binetti occurring after Dr. Cohen had performed the Caesarian section on Franco.   He stated:

It is of significance to note that I reached Dr. Binetti at his home at approximately 8:40 p.m. on 12/16/04 to notify him of what had transpired with Ms. Franco.   I was then called by Dr. Binetti as I was leaving the operating room.   He informed me that he was in his office and was reviewing her chart and that he couldn't understand what had gone wrong.   I told him that I was quite preoccupied with Ms. Franco at that time and that perhaps we could talk at some other time.   Dr. Binetti then called me a second time around midnight.   We discussed what had transpired and he asked me if there was anything that he could have done differently.   I told him that Mr. Franco was very upset that he had ignored her complaints of headaches and that her sister [a nurse] was too sophisticated to be misled.   He replied, “the chart no longer exists as it once did.”   I told Dr. Binetti that was not my concern.   I had a sick patient on my hands and his confiding in me that he would tidy up the chart made no sense to me.   The conversation ended and I never spoke to him again.

Dr. Cohen then expressed his expert opinion that Dr. Binetti deviated from the standards of care in the community by failing to listen to Franco's complaints of severe headaches, thereby permitting her to progress from preeclampsia to eclampsia, a condition necessitating the delivery of a significantly premature baby who was incapable of surviving.   Dr. Cohen reached the same conclusion when considering the care afforded by Dr. Sullivan.   Additionally, Dr. Cohen stated:  “Dr. Binetti also deviated from the standards of care in most any community by admitting to doctoring a medical chart after an adverse event has occurred.”

In a deposition given on November 18, 2008, Dr. Cohen described his interactions with Dr. Binetti in a fashion that differed from his report.   Although Dr. Cohen testified that he would “stand by” his statement that Dr. Binetti told him “the chart no longer exists as it once did,” that statement was “not [his] memory any longer.”   Rather, Dr. Cohen testified that in the midnight call,

I asked him what he was doing in the office, because he told me he was in the office.   The first time I called him he was home.   The second time I don't know where he was, I couldn't talk to him, I was just leaving the OR. And the third time I asked him, [”]What in the world are you doing in the office[?”]  And he didn't respond to me anything consistent with what you just asked me such [as], [”]My dedication to my patient is [such] that I felt the need to go check her chart out to see if I could — [”] [T]o what purpose would checking her chart do in a patient who's already seized and delivered, and I've already told him that baby is alive, the mother is doing well?

I think it's very difficult for me to convey to you what our conversation consisted of any more than I would understand, perhaps, if you told me two attorneys were talking and understood what they were saying.   It was beyond clear to me, besides the quote, why he was in his office at midnight.   And, “Thank you for the heads up.”

Now, Thank you for the heads up was two pronged.   One, thank you for the courtesy of telling me about my patient's condition, I appreciate that, and that was wonderful for him to be respectful, and I appreciated him saying that.   The second was thanks for the heads up.   You interpret that as I did, or however you interpret that.

After clarifying that Dr. Binetti had said something that was the equivalent of thank you for the heads up, Dr. Cohen attributed a “sinister” meaning to the phrase, testifying “And thank you for the heads up, because that gives me an opportunity to do what I need to do.”   The following exchange then occurred:

Q And am I correct that since obviously Dr. Binetti could not alter the events at this point in time, I mean, Mrs. Franco was in the Hospital at Chilton, and she had had the baby delivered, and both were stable at the time.   Based upon that factual circumstance, are you telling me that you could not imagine a logical reason why he would go to the office that night since he couldn't affect what was happening anyway?

A I thought I already told you what the logical reason was.   It had nothing to do with Mrs. Franco's care.

Q So you think he went back there so he could play with the chart?

A I do.

Q So am I correct that you cannot think of any logical, well-intentioned reason for him to go back late to the office that night;  is that correct?

A It would be illogical to do that at midnight.   Nothing would have changed at eight in the morning.

Significantly, Dr. Cohen conceded that, if the office chart that Dr. Binetti produced in discovery and at trial were accurate, “the clinical picture presented ․ [was] not one of a patient who is preeclamptic.”

During the course of his deposition, Dr. Cohen was asked about two disciplinary actions taken against him.   In one, occurring twenty-two years earlier, Dr. Cohen was seated on his deck with his brother-in-law, who had just graduated from medical school, when he was called to the hospital to perform a delivery.   Dr. Cohen invited the brother-in-law to observe the delivery without obtaining the consent of the patient.   Then, while Dr. Cohen was scrubbing, the patient expelled the baby, which was caught by the unlicensed brother-in-law in his bare hands.   The episode was seen and reported by the nursing supervisor.   As a consequence, according to Dr. Cohen, he was given a week's suspension, which he stated he was permitted to take as vacation time.

Additionally, ten years ago, he saw a patient in the emergency room who had an ectopic pregnancy.   Because she had no insurance, rather than performing the surgery necessary to address the condition, the doctor directed her to the clinic at St. Joseph's Hospital, which he maintained would provide free care.   Instead, the woman went to Morristown Memorial Hospital.   When her Morristown physician learned of Dr. Cohen's conduct, the physician reported Dr. Cohen to the New Jersey State Board of Medical Examiners.   Dr. Cohen did not contest the charges against him, and he was reprimanded.

Immediately before the commencement of trial, plaintiffs' counsel moved in limine pursuant to N.J.R.E. 608 to bar defense counsel from cross-examining Dr. Cohen with regard to the two disciplinary actions disclosed at his deposition.   Defense counsel took the position that evidence of the two actions was relevant to Dr. Cohen's credibility and was admissible pursuant to N.J.R.E. 607.   The trial judge initially observed that the incidents might demonstrate that Dr. Cohen “was guilty of stupidity,” that he was “a cheap son of a gun,” or that “he [was] not Mother Theresa,” but that they did not affect his credibility as it related to his factual testimony regarding Dr. Binetti's alteration of Franco's chart.   Defense counsel rejoined by arguing that, because Dr. Cohen intended to testify to wrongful records alteration by Dr. Binetti, the nature of Dr. Cohen's own character became an issue.   As stated by counsel for Dr. Sullivan, the evidence “shows the measure of the man.”   Additionally, counsel argued that the doctor had given conflicting descriptions of the reprimands in prior proceedings that should come before the jury as demonstrating Dr. Cohen's lack of credibility.

On the next trial day, counsel for Dr. Binetti argued that the two disciplinary matters were relevant to the credibility of Dr. Cohen's conclusion that the statement, “thanks for the heads up,” had a sinister connotation, because there was no logical reason for a doctor to drive to his office at midnight other than to alter his records.   Counsel argued:

Well, you know what that tells us about him [Dr. Cohen]?   He is not the kind of person that when his patient develops a serious problem, gets himself out of bed and says, “Holy mackerel, did I miss something?   Is there something in my chart?   Can I tell them to help them?” and drive into his office and look.   And [how do] we know he's not that kind of person?   Because he's the person that sent away an uninsured patient with an obstetric emergency and he's the person who had no consideration of that woman's rights of privacy and let his brother-in-law come watch.   And so those incidents do tie into his line of thinking and how he came to what I contend is an absurd and unfair conclusion.

Counsel for Dr. Sullivan argued:  “When [Dr. Cohen has] chosen to challenge the credibility and character of one of the defendants and the reliability of his records, the defense has to be able to challenge the credibility and character of the person making that accusation.”

Following argument, the judge denied plaintiffs' motion and ruled that the evidence of Dr. Cohen's two disciplinary charges was relevant to the credibility of the doctor's assertion that Dr. Binetti disclosed that he had altered his office records, and that the probative value of the evidence outweighed its prejudicial impact.   The disciplinary charges were in fact utilized, in the fashion that defense counsel proposed, in opening argument, cross-examination of Dr. Cohen, and in the closing argument made on behalf of Dr. Binetti.

II.

On appeal, we must give “ ‘substantial deference to a trial [judge's] evidentiary rulings.’ ”  State v. Goodman, 415 N.J.Super. 210, 224 (App.Div.2010), certif. denied, 205 N.J. 78 (2011) (quoting State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L. Ed.2d 306 (2001)).   In our review, we employ “ ‘an abuse of discretion standard.’ ”  Ibid. (quoting State v. Burns, 192 N.J. 312, 332 (2007)).   However, if our disagreement with the trial judge's ruling turns on a question of law, our review is plenary.  State v. Rose, _ N.J. _, _ (2011) (slip op. at 22);  Division of Youth & Family Servs. v. I.H.C., 415 N.J.Super. 551, 571 (App.Div.2010) (citing Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)).

Plaintiffs argue that the improper admission of the evidence of Dr. Cohen's prior misdeeds resulted in a miscarriage of justice, and that the evidence was inadmissible as the result of N.J.R.E. 608, which provides:

(a) The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, provided, however, that the evidence relates only to the witness' character for truthfulness or untruthfulness, and provided further that evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.   Except as otherwise provided by Rule 609 [conviction of a crime] and by paragraph (b) of this rule [concerning criminal cases], a trait of character cannot be proved by specific instances of conduct.

We do not find that rule to be dispositive here.   Defendants did not contend at trial that Dr. Cohen was untruthful or seek to use his prior disciplinary record to demonstrate that fact.²  They argued instead that the conclusion drawn by Dr. Cohen from evidence that Dr. Binetti returned to his office late in the evening of December 16 was not credible.   Consequently, defendants argued the applicability of N.J.R.E. 607, which states:

Except as otherwise provided by Rules 405 [methods of proving character] and 608, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence relevant to the issue of credibility․

However, we are not satisfied that this analysis is proper, either.   What defendants sought to do was to demonstrate that the inference that Dr. Cohen drew from alleged facts was incorrect.   As such, “credibility” was involved only to the extent that it was synonymous with terms such as “reasonable” or “logical” or “well-founded.”   We have found no decisions applying N.J.R.E. 607 in this context.³

Rather, it appears to us that defendants sought to prove that Dr. Cohen could not conceive of a non-sinister explanation for the presence of Dr. Binetti in his office because Dr. Cohen, himself, lacked the concern for his own patients that would have caused him to recognize and accept that the late-night office visit could have had a proper motivation.   Evidence of Dr. Cohen's prior wrongs served to reinforce this thesis.   Indeed, the frequent iteration of the argument that the jury needed to understand, in connection with Dr. Cohen, “the measure of the man” provides strong support for the conclusion that what was at stake here was character evidence.

However, N.J.R.E. 404(a) provides that “[e]vidence of a person's character or character trait ․ is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion” except in circumstances that do not exist in this case.   More significantly, N.J.R.E. 404(b) bars introduction of “evidence of other crimes, wrongs, or acts ․ to prove the disposition of a person in order to show that such person acted in conformity therewith.”   Although this rule is utilized more frequently in a criminal context in connection with evidence of prior criminal conduct “to guard a defendant's right to a fair trial by avoiding the danger that a jury might convict the accused because the jurors perceive him to be a ‘bad person [,]’ ” State v. Ramseur, 106 N.J. 123, 265 (1987), this exclusionary rule has been found applicable to non-criminal wrongs and has been utilized in civil trials, as well.   See, e.g., Harris v. Peridot Chem. (N.J.), Inc., 313 N.J.Super. 257, 276–83 (App.Div.1998) (evidence of prior release of gases ruled admissible under N.J.R.E. 404(b) in toxic tort action by nearby plant workers);  Burbridge v. Paschal, 239 N.J.Super. 139, 155 (App.Div.) (photograph found inadmissible under predecessor to N.J.R.E. 404(b) but error found to be harmless), certif. denied, 122 N.J. 360 (1990).

Having considered the matter at length, and having the benefit of the parties' supplemental briefing on the issue, we conclude that evidence of Dr. Cohen's prior wrongful acts should have been barred, as a matter of law, by N.J.R.E. 404(b) because the sole purpose for the introduction of that evidence was to demonstrate conformity of the doctor's thought processes when confronted with evidence of Dr. Binetti's late-night office visit on December 16 with the thought processes that led to the incidents resulting in discipline.   This is precisely the basis for the exclusion of the evidence under N.J.R.E. 404(b).  State v. Nance, 148 N.J. 376, 386 (1997).

We recognize that such “wrongful act” evidence may be introduced for another purpose, such as demonstrating “motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”  Ibid. However, admission on such a basis requires careful analysis, utilizing the four-factor test established in State v. Cofield, 127 N.J. 328, 338 (1992) and State v. Marrero, 148 N.J. 469, 483 (1997).⁴  Such an analysis did not occur here.   But of more fundamental significance, we find no basis to conclude that any of the exceptions set forth in N.J.R.E. 404(b) could be found applicable to the evidence of Dr. Cohen's wrongful acts as that evidence was introduced at trial.

Rule 4:49–1 provides that the trial judge shall grant a motion for a new trial if “it clearly and convincingly appears that there was a miscarriage of justice under the law.”  Crawn v. Campo, 136 N.J. 494, 512 (1994) (affirming order for a new trial premised on errors in trial rulings that created undue prejudice).   In this case, we are satisfied that a new trial is not warranted with respect to Dr. Sullivan.   Plaintiffs' case against him was premised on the allegation that Franco had disclosed in her conversation with the doctor that she was suffering from a severe headache, which symptom he failed to treat properly, and on the allegation that he failed to report her symptoms to Dr. Binetti as he stated he would do.   No claim was raised at trial that Dr. Sullivan either improperly discarded any record of the telephone conversation with Franco or that records had been altered by him.   Although counsel for Dr. Sullivan participated actively in the argument regarding the admissibility of Dr. Cohen's wrongful acts, that evidence was not relevant to plaintiffs' claims against him.   As a consequence, we find no basis to conclude that the jury's verdict in favor of Dr. Sullivan could have been improperly infected by the evidence that we have found to have been improperly admitted.

We reach a different conclusion regarding plaintiffs' claims against Dr. Binetti.   Our review of the trial transcript demonstrates such extensive use of the mistakenly admitted character evidence that, in our view, undue prejudice likely resulted.   We therefore vacate the judgment in Dr. Binetti's favor and remand the matter for a new trial.   As the result of our ruling here, evidence of Dr. Cohen's wrongful acts should not be admitted as evidence of Dr. Cohen's character pursuant to N.J.R.E. 404(b), 607 or 608.   We take no position as to whether the evidence can be admitted for another purpose.

As the result of our determination to order a new trial, we decline to address the issue of whether the trial judge should have conducted an investigation into alleged juror misconduct.

Affirmed in part;  reversed in part.

FOOTNOTES

FN2. Defendants did point to inconsistencies in the various accounts of that disciplinary record given in prior legal proceedings and this trial.   If we assume that the disciplinary record was admissible, defendants' use of Dr. Cohen's variable testimony was permissible pursuant to N.J.R.E. 607..  FN2. Defendants did point to inconsistencies in the various accounts of that disciplinary record given in prior legal proceedings and this trial.   If we assume that the disciplinary record was admissible, defendants' use of Dr. Cohen's variable testimony was permissible pursuant to N.J.R.E. 607.

FN3. We find the decision upon which defendants rely in claiming the applicability of N.J.R.E. 607 to be distinguishable.  Lawlor v. Kolarsick, 92 N.J.Super.   309 (App.Div.1966), certif. denied, 48 N.J. 356 (1966), concerned the truth of the testimony of plaintiff's expert, when asked his qualifications, that he was primarily engaged in the practice of medicine and medical research.   Defendants in the present matter did not seek to use Dr. Cohen's disciplinary history to challenge his qualifications..  FN3. We find the decision upon which defendants rely in claiming the applicability of N.J.R.E. 607 to be distinguishable.  Lawlor v. Kolarsick, 92 N.J.Super.   309 (App.Div.1966), certif. denied, 48 N.J. 356 (1966), concerned the truth of the testimony of plaintiff's expert, when asked his qualifications, that he was primarily engaged in the practice of medicine and medical research.   Defendants in the present matter did not seek to use Dr. Cohen's disciplinary history to challenge his qualifications.

FN4. To be admitted:  (1) evidence of the other crime or wrongful act “must be admissible as relevant to a material issue”;  (2) “[i]t must be similar in kind and reasonably close in time to the offense charged”;  (3) “[t]he evidence of the other crime or act must be clear and convincing” and (4) “[t]he probative value must not be outweighed by its apparent prejudice.”  Cofield, supra, 127 N.J. at 338..  FN4. To be admitted:  (1) evidence of the other crime or wrongful act “must be admissible as relevant to a material issue”;  (2) “[i]t must be similar in kind and reasonably close in time to the offense charged”;  (3) “[t]he evidence of the other crime or act must be clear and convincing” and (4) “[t]he probative value must not be outweighed by its apparent prejudice.”  Cofield, supra, 127 N.J. at 338.

PER CURIAM