N.J. liability trial swamped with errors

A column analyzing the impact of recent court decisions on physicians

By Amy Lynn Sorrelcovered legal, antitrust, fraud and liability issues from 2005 to 2010, and has also written the "In the Courts" column. Posted Sept. 7, 2009.

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After a mistrial, a recent New Jersey medical liability case saw another rocky start.

During jury selection, potential jurors complained in open court about the medical profession and about negative experiences at a hospital that was a defendant in the case.

Plaintiff attorneys made disparaging remarks about the physician defendants and their expert witnesses.

A trial judge insinuated that the hospital and physician defendants were to blame for the earlier mistrial because they allegedly withheld certain evidence.

Those were just a few of the problems that led the New Jersey Supreme Court to unanimously toss out a $72 million jury verdict in the case, Pellicer v. St. Barnabas Hospital.

In a rare decision, justices on July 23 found that an Essex County trial judge's overall failure to ensure jurors were properly screened for bias in the jury selection process and the court's preferential treatment of the plaintiffs thwarted the trial's fairness. The high court, while setting aside the question of whether the verdict itself was excessive, sent the case back for a new trial -- this time with a new presiding judge. No hearing dates have been scheduled.

"Taken together, these numerous claims of error cannot be explained away as harmless," Justice Helen E. Hoens wrote. "They are not simply a litany of minor or inconsequential matters of no substance or significance. Rather, they represent real and repeated errors that cumulated so as to unfairly tilt the balance in favor of plaintiffs and to deprive defendants of a fair trial."

In 1998, 4-month-old Casey Pellicer, a spina bifida patient, underwent surgery at St. Barnabas Medical Center in Livingston, N.J. During recovery, an endotracheal tube became dislodged and oxygen deprivation led to irreversible brain damage. Pellicer's family sued, alleging the medical staff's delayed response and lack of proper training caused the boy's injuries. St. Barnabas and the doctors and nurses named in the lawsuit denied any negligence.

The first trial ended in a mistrial when St. Barnabas failed, until late in the process, to produce cardiac monitoring strips from Pellicer's chart, according to court records. The hospital, while admitting no impropriety, ultimately settled out of the case.

A second jury in 2004 awarded the Pellicers an unprecedented $75 million -- which the court later reduced to $72 million -- with $50 million of that for noneconomic damages.

The physician and nurse defendants appealed, arguing a host of errors by the trial judge deprived them of a fair trial and inappropriately inflamed the jury to such a point it resulted in an extreme verdict.

Avalanche of errors

The defendants pointed to a stark contrast in the jury selection process between the two trials. Rather than interviewing potential jurors in private about their preexisting biases against health care professionals -- as was done the first time -- the judge allowed screening of all of the prospects in open court. As a result, the jurors eventually selected were exposed to prejudicial views that could interfere with their ability to decide the case impartially, doctors argued.

According to court records, potential jurors were permitted to openly express what they described as poor care at St. Barnabas. One potential juror characterized his child's care at another facility as "the single worst moment of his life."

Secondly, defendants highlighted tactics by the plaintiffs' counsel that went unchecked by the trial court, including criticism of a defense expert based on his ethnic heritage and experience, accusations that the doctors were involved in hiding evidence, and claims that doctors would profit financially if the patient died.

In addition, defendants argued the trial court prevented them from presenting certain testimony related to the calculation of medical costs, while allowing the plaintiffs to present inadmissible evidence about Pellicer's mother's emotional distress. The court also chastised the defense in front of the jury for using certain language in its arguments, with little restriction on the plaintiffs' counsel, legal records show.

An appeals court, addressing the claims of error individually, found that each was harmless.

But the Supreme Court disagreed with that analysis. Looking at the errors as a whole, justices found that they "pervaded the trial."

Focusing on the jury selection, or voir dire, the high court said that although "an unexpected expression of bias by a juror may be unavoidable, intentionally exposing jurors to expressions of such bitterness, anger, resentment and bias serves no legitimate purpose."

Justices found the trial court's other decisions troubling, saying they opened the door for the plaintiffs "to shift the jury's focus from a fair evaluation of the evidence to pursue, instead, a course designed to inflame the jury, appealing repeatedly to inappropriate and irrelevant considerations that had no place in the courtroom." The high court also agreed with the defendants that the trial court's treatment of the parties was not even-handed.

All of those elements, coupled with the high verdict, "engenders the distinct impression that defendants were not accorded justice," the Supreme Court concluded.

Justice Hoens also concluded that the third trial was best left in the hands of a new presiding judge because "it unfortunately appears that the trial court's admitted outrage at the hospital [for the mistrial] was not dissipated by that party's settlement and sanction."

A question of fairness

Not every trial has to run perfectly to get a just result, said Lawrence Downs, general counsel to the Medical Society of New Jersey. "But judges are there to make sure the trial is balanced."

The MSNJ filed a friend-of-the-court brief in the case urging the high court to overturn the record verdict for fear it would desensitize future juries and drive up liability insurance costs to the point of compromising doctors' ability to practice.

The medical society, like the defendants in the case, also asked the court to declare the award excessive. Although that didn't happen, "the most significant thing here is that the highest court in the state saw an outrageous judgment and took a look at the underlying conduct that resulted in that award and said it's not acceptable," Downs said.

Craig M. Rothenberg, who represented the Pellicers at the Supreme Court level, said the ruling does not mean jury verdicts like this cannot stand under the right circumstances. "Every trial is different," said Rothenberg, of Union, N.J., adding that judges have wide latitude in conducting trials.

Indeed, the Supreme Court said that, if the verdict had been awarded by a "fairly impaneled, dispassionate, and unbiased jury, based on adequate and appropriate testimony and evidence, the award might well be sustainable." In the end, however, justices said, "our concerns about the improprieties that infected this trial call the verdict into question because this historic and extraordinary damage award cannot be separated from those errors."

It's not just the occasional poor judgment by a trial judge that will win parties further review of a trial ruling, said Catherine J. Flynn, who represented one of the physicians in the case. Quality, as well as quantity, play a role.

"The frequency of the errors and also the types of errors committed created a compelling circumstance for why the court found it necessary to review the case. ... And it's how harmful those errors are that makes all the difference in the world," said Flynn, of Lindabury, McCormick, Estabrook & Cooper PC's Westfield, N.J., office.

The ruling is significant because appellate courts pay a lot of deference to trial court decisions, said Charles X. Gormally, a health care lawyer with Brach Eichler LLC in Roseland, N.J. While court rules generally outline procedures for conducting voir dire and admitting evidence, for example, judges typically are given a lot of leeway in applying those rules.

"Judges do have tremendous discretion and the standard for reviewing that discretion is very high," Gormally said. "It's not just that a judge did it this way. But you really have to prove the error is of such magnitude as to lead to a manifest injustice."

While the decision will help provide guidance to future courts in ensuring fair trials, it's not likely to give defendants an easy path to challenging trial court rulings, he said. In general, doctors can appeal trial court rulings arguing that an award is so high as to shock the conscience.

But in the end, that's not what won over justices in this case, Gormally said.

"What this really begs for is consideration of a legislative response if we are leaving these kinds of [medical liability issues] to juries to fashion a remedy."

Amy Lynn Sorrel covered legal, antitrust, fraud and liability issues from 2005 to 2010, and has also written the "In the Courts" column.

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