KATHLEEN BENDER, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF ROBERT F. BENDER, DECEASED, AND KATHLEEN BENDER, INDIVIDUALLY, PLAINTIFF-RESPONDENT, v. RICHARD ADELSON, M.D., MAURICE WEISS, M.D. AND SHORE HEART GROUP, DEFENDANTS-APPELLANTS, AND JANE ROES, R.N. 1-6 (FICTITIOUS NAMES, TRUE NAMES BEING UNKNOWN) AND JOHN DOES, M.D. 1-6 (FICTITIOUS NAMES, TRUE NAMES BEING UNKNOWN), DEFENDANTS.
Supreme Court of New Jersey
Decided July 19, 2006
901 A.2d 907
Argued March 20, 2006
And good cause appearing:
It is ORDERED that JEFFREY R. POCARO is hereby censured; and it is further
ORDERED that the entire record of this matter be made a permanent part of respondent‘s file as an attorney at law of this State; and it is further
ORDERED that respondent reimburse the Disciplinary Oversight Committee for appropriate administrative costs and actual expenses incurred in the prosecution of this matter, as provided in
Jeffrey A. Peck argued the cause for respondent (Drinker Biddle & Reath, attorneys; Mr. Peck and Jodi Sydell Rosenzweig, on the brief).
After plaintiff‘s husband died during a heart procedure, plaintiff sued his doctors for negligence, and a jury awarded plaintiff $1.6 million. The trial court, however, granted defendants’ motion for a mistrial. It found that comments that plaintiff‘s counsel made during summation asking the jury to draw an adverse inference from defendants’ failure to present certain independent experts were unfair and prejudicial because defendants had been barred from submitting the names and reports of three experts as untimely. Plaintiff appealed, and a divided Appellate Division panel reversed, holding that counsel‘s summation comments were factually accurate, did not exceed the bounds of proper advocacy, and that those comments that were not accurate were redressed by the trial court‘s curative instruction. The question concerning the propriety of counsel‘s summation comments is before us because defendants appealed to this Court as of right. We granted defendants’ petition for certification on the issue whether the trial court abused its discretion when it barred the testimony and submission of defendants’ experts’ reports.
We hold that the trial court‘s order granting a mistrial must be reinstated. Although we find that the trial court did not abuse its discretion when it barrеd defendants’ experts, we conclude that the summation comment made by plaintiff‘s counsel concerning the absence of those experts had the capacity to mislead the jury and effected a “miscarriage of justice under the law” thus requiring a new trial under
I.
A.
In March 1999, after experiencing pain in his back and jaw, Robert Bender, the decedent, sought treatment from Dr. Richard Adelson, an interventional cardiologist. Dr. Adelson concluded that the decedent required a cardiac catheterization, an invasive diagnostic procedure that is used to assess the status of a patient‘s
During the procedure, Drs. Adelson and Weiss (defendants) observed clots in the right and left arteries of the decedent‘s heart and determined that a percutaneous coronary intervention (PCI) was necessary. PCI involves the use of angioplasty and stent placement to unclog arteries. In the morning before the PCI began, defendants initially gave the decedent 5,000 units of Heparin, an anticoagulant used to decrease the blood‘s clotting. While finishing the angioplasty on the right artery, defendants administered an additional 7,500 units of Heparin and prepared for a second angioplasty on the decedent‘s left arteries. During that second angioplasty, the decedent‘s left anterior descending artery and diagonal artery closed, and defendants administered 2,000 additional units of Heparin and two doses of Integrilin, another anticoagulant, to the decedent.
After finishing that procedure, defendants moved the decedent to a holding area. A half-hour later, the decedent became restless, experienced back pain, vomited, and had seizures. Later, the decedent experienced low blood pressure, had another seizure, and defendants administered CPR. The decedent was rushed to the operating room where another doctor performed open-heart surgery. Unfortunately, that effort was unsuccessful, and the decedent entered into a coma and died. The decedent was forty-three years old at the time of his death and had two children, who were eighteen and ten years old.
B.
On April 5, 2000, plaintiff Kathleen Bender, the decedent‘s wife, filed a complaint alleging negligence and naming Dr. Adelson, Dr. Weiss, Shore Heart Group, and unnamed doctors and nurses as defendants. The pre-trial proceedings, which we detail here because they serve in part as the basis for this appeal, involved various extensions and delays.
Because defendants had not yet submitted their expert reports, on March 27, 2002, plaintiff moved to compel their production by April 29, 2002. The trial court granted plaintiff‘s motion, ordering that “any defense expert whose report is not served by April 29, 2002 [will be barred] from testifying at trial.” To comply with the order‘s deadline, defendants identified themselves as experts on April 26, 2002. Defendants also sought more time to identify additional experts. Plaintiff consented, and, on May 17, 2002, the trial court entered an order allowing expert reports until May 29, 2002. The order contained the same exclusionary language as the prior month‘s order, indicating that “any defense expert whose report is not served by May 29, 2002 shall be barred from testifying at trial.” Eight days prior to the May 29 deadline, defendants submitted to plaintiff the name and report of Dr. Mark Hochberg, a cardiac surgeon. After the May 29 deadline, in letters dated June 25 and July 8, 2002, defendants requested plaintiff‘s permission to amend their answers to plaintiff‘s interrogatories and submitted the names and reports of three additional experts: Drs. Samin Sharma and E. Scott Monrad, interventional cardiologists, and Dr. Stephen M. Factor, a pathologist.
Plaintiff responded in a letter dated July 11, 2002, formally objecting to defendants’ untimely submission of the three additional experts. Also, in a notice dated July 11, 2002, the trial court set a new trial date for September 11, 2002. Then, on July 19, 2002, defendants moved before the trial court to admit the names and
[Dr. Hochberg is] not an evasive [sic] cardiologist. He‘s done maybe six procedures. He‘s not a pathologist. He‘s not a hematologist. We‘ve got him because we had these deadlines and we were trying to find somebody who would write a report. So he‘s been deposed and he is vaguely knowledgeable about this area, but nowhere near the kind of specialties that the plaintiff‘s experts have and the ones that we finally were able to locate.
Plaintiff‘s counsel responded by arguing that Dr. Hochberg could adequately testify as an expert witness on defendants’ behalf.
Dr. Hochberg has a ten-page resume to set forth just how much he knows. I believe he is competent to testify and cover the defendant‘s [sic] case. I am surprised to hear that he is—and I‘m quoting—“vaguely knowledgeable” about these topics. And I‘m not sure how that would come out at trial, but I do believe based on his ten-page resume that this doctor can handle this case without the use of the three out of time expert reports.
Plaintiff‘s counsel also claimed that the untimely expert reports were merely repetitive of that submitted by Dr. Hochberg.
The motion judge denied defendants’ motions to submit the untimely expert reports and to extend discovery. He cited his concern for the need to follow Best Practices, which are amendments to the New Jersey Rules of Court enacted to streamline and systematize the discovery process. Specifically, the motion judge stated that
basically the lodestar of my opinion is that the fact that these doctors were obtained late, I think they could have been obtained sooner. Everyone knew that this anticoagulation problem existed back in September of ‘01 and the experts could have been obtained. There have been a number of bites at the apple, as [plaintiff‘s counsel] says.
Defendants moved for reconsideration and submitted a certification, attempting to explain their delay in obtaining expert witnesses. The certification states that defendants began their search for experts in December 2001, but that several potential experts declined to serve on their behalf; that defendants also were delayed because they needed cineangiography films taken by plaintiff‘s counsel; and that informational materials asking Drs. Monrad and Factor to serve as experts were sent on May 21 and July 3, 2002, respectively, because the identities of those doctors had come to defendants’ attention only a short time prior to those dates.
The motion judge denied defendants’ motion for reconsideration. He stated that “there were enough extensions” and that defendants would not be “severely prejudiced” by the exclusion of the late experts because
Dr. Hochberg‘s C.V. is quite impressive. I don‘t know how he has time to practice medicine with all the articles that he writes, but he‘s a Harvard graduate and I think he went to Brown undergraduate. So, it‘s not like [defendants are] going to be in court with some inadequate expert. And I think Dr. Hochberg should be able to advocate the defendant‘s [sic] position.
The motion judge found that
C.
At trial, the parties presented competing theories concerning the decedent‘s cause of death. Plaintiff‘s experts testified that the decedent suffered from cardiac tаmponade, a condition whereby
In their summations, both parties argued that the jury should credit the testimony of their experts. Defense counsel argued that defendants were the most qualified:
You‘ve heard from five doctors in this case, three of them have had labels of experts. The fact of the matter is that the only two doctors who have testified who haven‘t been labeled experts were the ones with the most expertise in this case and the ones who were actually there at the time, and that‘s Dr. Adelson and Dr. Weiss.
Counsel also stated that despite his education, Dr. Sacher, plaintiff‘s expert, had said “some foolish things” during trial and had never performed the procedure in question. Further, counsel argued that the theory of plaintiff‘s other expert, Dr. Lux, was not based on fact. Counsel told the jury that defendants “are life givers. They‘re not life takers.”
In response, plaintiff‘s counsel attacked defendants’ experts and theory of the case. First, counsel remarked on the self-interested nature of defendants’ testimony:
Now, ask yourselves where are the outside objective, independent experts in hematology for the defense? This is a bleeding and clotting case. Where are the outside independent experts in cardiology? Ask yourselves whether the doctors’ testimony, the defendants, was honest, was accurate, was objective, or in certain instances was their testimony self-serving and misleading?
[Emphasis added.]
Secоnd, counsel argued that Dr. Hochberg was not qualified to give an expert opinion in the matter:
Dr. Hochberg in his time was probably a very good cardiac surgeon. He has excellent credentials in the field of cardiac surgery, but he is clearly not qualified to
give opinions in this case. It‘s not me saying that. It‘s Dr. Hochberg. And this was the cross-examination earlier today. Q: Doctor, is it true that you don‘t consider yourself an expert in bleeding and clotting disorders?
A: Answer: That‘s not my area of expertise.
Q: Doctor, do you know how Integrilin works on platelets?
A: Well, in a very broad sense, but I‘m not an expert at that. I‘m not a hematologist and do not represent myself as a hematologist.
Q: Doctor, do you know the requisite therapeutic range of Integrilin when used in performing PCI in 1999?
A: Answer: I am not specifically familiar with it.
Q: More importantly, Doctor, do you know the generally accepted therapeutic range of Heparin when used with Integrilin in performing a PCI?
A: Answer, verbatim, I‘m not [an] expert and don‘t feel comfortable giving you a number in that regard.
Q: Question: Dr. Hochberg, do you know the synergistic effect—that‘s the compounded effect of using both these drugs together—in the setting of over-Heparinization?
A: Answer: I don‘t know the answer to that question.
....
[Dr. Hochberg is] admittedly not a hematologist. He‘s admittedly not an interventional cardiologist. He doesn‘t treat patients currently and hasn‘t since 1993 or 1995. I guess [that] was the last time he even touched a patient and 1993 was the last time he performed surgery. That‘s nine years ago. He doesn‘t have hospital privileges and he‘s never performed a PCI. That‘s not saying Dr. Hochberg is a bad man or a bad doctor. He‘s not. It‘s just a fish out of water in this courtroom. He‘s not familiar with the issues. He‘s not familiar with the medication. He‘s never performed the procedure.
Finally, counsel commented on what he characterized as “substantial” drops in the decedent‘s hematocrit levels “from the time that Heparin and Integrilin were administered” and referenced several articles in medical journals that he claimed supported his experts’ theory that excessive anticoagulation can cause spontaneous bleeding.
At the close of arguments, defense counsel moved for a mistrial based on plaintiff‘s summation. He argued that counsel‘s comment regarding the lack of independent experts and his statement that Dr. Hochberg was not qualified to serve as an expert violated the doctrine of judicial estoppel in light of counsel‘s prior representations to the motion judge. Further, defense counsel claimed
I just want to correct one thing and tell you that none of the articles [referenced by plaintiff‘s counsel] suggest that there was excessive coagulation.... Also ... [plaintiff‘s counsel] mentioned to you the term hematocrit or hemoglobin readings and the suggestiоn to you was that these hemoglobin readings were low and that they may be indicative of bleeding. I ask that you disregard that comment because there was no expert here who had testified that, in fact, there is a connection between that particular reading and the fact that there may have been some bleeding.
The jury subsequently found for plaintiff, awarding $1,625,000 in damages. Approximately one month later, however, the trial court granted defendants’ motion for a mistrial. The trial court found that the “cumulative effect” of the summation comments made by plaintiff‘s counsel was “clearly capable of producing an unjust result” and that the comment that Dr. Hochberg was not qualified to testify as an expert in this matter violated principles of judicial estoppel in light of counsel‘s prior representations to the motion judge. The trial court added that “the Best Practice Rule was never intended to become a jousting event.”
Plaintiff appealed the trial court‘s order granting a mistrial, and a divided panel of the Appellate Division reversed in an unpublished opinion. The panel unanimously agreed with the trial court that the comment regarding the decedent‘s falling hematocrit levels was improper because of the absence of expert testimony on that issue but found that the trial court‘s curative instruction provided an adequate remedy. Concerning the summation comment asking where the independent hematologists and cardiologists were, the majority found that the comment was accurate
Judge Payne dissented, finding that “[t]he integrity of the judicial process was not preserved here.” The dissent stated that the majority‘s reading of counsel‘s comment asking where are the independent experts was “hypertechnical” and that the comment clearly inferred “that only defendants themselves viewed their conduct to have been proper in the circumstances.” Further, the dissent found that the summation comment concerning Dr. Hochberg‘s qualifications was “inequitable” because plaintiff‘s counsel already had deposed Dr. Hochberg and learned of his weaknesses prior to arguing before the motion judge. The dissent concluded that the representations made by plaintiff‘s counsel to the motion judge “had the capacity to mislead the motion judge” and that counsel‘s summation comments constituted an “about-face.”
Following the Apрellate Division decision, defendants filed a motion for judgment notwithstanding the verdict (and subsequent motion for reconsideration) with the trial court, which the trial court denied. Defendants appealed both the denial of their motion for judgment notwithstanding the verdict and the motion judge‘s original order barring the three late expert reports. The Appellate Division again denied defendants’ appeal, this time unanimously, finding that the motion judge did not abuse his discretion when he barred the expert reports because “[i]t is not clear that defense counsel diligently sought the necessary experts.” Defendants then filed a petition for certification with this Court on the
II.
A.
We first address the issue of the three barred experts. Defendants argue that the motion judge abused his discretion in denying the submission of the names and reports of those three experts as untimely. They claim that the Best Practices amendments are not designed to yield unjust results or to be applied mechanically and that plaintiff still would have had at least two full months to depose the additional experts before trial. Defendants maintain that without the additional experts they were denied a fair trial, adding that plaintiff herself “sat” on her expert reports until the very end of discovery, despite the fact that her reports had been completed some time prior.
Plaintiff responds that the motion judge did not abuse his discretion in denying submission of the three experts’ names and reports because defendants did not make a showing of exceptional circumstances or due diligence as required by the rules. Plaintiff states that defendants essentially argue that “there should be no deadlines, and each party should have endless opportunity to out-expert the other.” Plaintiff adds that she did not deliver her expert reports right before the discovery end date, as defendants so claim, because discovery had been extended in accordance with defendants’ request. Further, plaintiff claims that had defendants desired her reports sooner, they could have moved to compel their production.
The term “Best Practices,” as referenced by the parties, describes the project undertaken by the Conference of Civil Presiding Judges, which, after significant review by the Civil Practice Committee and this Court, effected substantial changes to our Rules of Court as of September 2000. Pressler, Current N.J. Court Rules, comment 4 on
The Best Practices project resulted in rules that established a two-prong approach to ameliorate those problems and create state-wide uniformity in the discovery process. See Pressler, supra, comment 4 on
Of relevance to this appeal,
[I]f a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later than 20 days prior to the end of the discovery period.... Amendments may be allowed thereafter only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date.
[Emphasis added.]
Some flexibility is retained because the parties “may consent to extend the time for discovery for an additional 60 days.”
The rules also have a catch-all relaxation provision, which provides that “[u]nless otherwise stated, any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice.”
C.
Applying an abuse of discretion review standard to the trial court‘s decision to bar defendants’ requested amendments to their interrogatory answers and deny a further discovery extension, Rivers v. LSC Partnership, 378 N.J. Super. 68, 80, 874 A.2d 597 (App. Div.), certif. denied, 185 N.J. 296, 884 A.2d 1266 (2005) (citation omitted), we find that defendants failed to show “due diligence,”
As noted by the trial court, defendants knew about plaintiff‘s excessive anticoagulation theory since September 2001, when plaintiff submitted her expert reports. Yet, defendants offer no substantively adequate explanation for their delay in proffering the three expert names and reports. They state in general terms that this matter involves complex and technical medical malpractice issues, but many cases that enter our courtrooms are complex. They state that experts with specialized training were hard to locate. But were we to extend discovery and grant amendments for every untimely request with conclusory references to specialized and hard to locate experts, we would revert to the pre-Best Practices approach to discovery—an approach that litigants, courts, and the public at large all found highly unsatisfactory. A precise explanation that details the cause of delay and what actions were taken during the elapsed time is a necessary part of proving due diligence as required by
Moreover, although defendants likely would have benefited at trial had the three experts been allowed to testify, defendants were able to present Dr. Hochberg, a distinguished cardiac surgeon with an impressive resumé whose name and report were submitted by defendants in a timely manner. See Zadigan, supra, 369 N.J. Super. at 133 n. 10, 848 A.2d 73 (barring defendant‘s late expert and noting that because defendant had already secured report of different expert, “defendant‘s case would not be placed in jeopardy if [late expert‘s] report were barred“). Defendants, who are interventional cardiologists and experts in their field, also were able to testify at trial and defend their position. See O‘Donnell, supra, 363 N.J. Super. at 52, 830 A.2d 924 (barring expert whose report was produced after scheduled trial date but stating that doctor defendant “will have his ability to defend himself on the merits. He is an expert and will be permitted to testify on his own behalf.“). As such, defendants were not precluded from presenting their case to the jury despite exclusion of the three experts. Cf. Ponden, supra, 374 N.J. Super. at 11, 863 A.2d 366 (finding that trial judge mistakenly exercised discretion in barring plaintiff‘s expert report when trial date was not yet scheduled and “prior expert had rendered only a net opinion that
Finally, the application of
III.
We now turn to the summation remarks made by plaintiff‘s counsel. As a general matter, “counsel is allowed broad latitude in summation [and] counsel may draw conclusions even if the inferences that the jury is asked to make are improbable, perhaps illogical, erroneous or even absurd.” Colucci v. Oppenheim, 326 N.J. Super. 166, 177, 740 A.2d 1101 (App. Div. 1999), certif. denied, 163 N.J. 395, 749 A.2d 369 (2000) (citations omitted). Summation commentary, however, must be based in truth, and counsel may not “misstate the evidence nor distort the factual picture.” Ibid. (internal quotation marks and citation omitted); see also Wimberly v. City of Paterson, 75 N.J. Super. 584, 604, 183 A.2d 691 (App. Div.), certif. denied, 38 N.J. 340, 184 A.2d 652 (1962) (stating that counsel may not draw inferences during summation if “there are no grounds for [such inferences] in the evidence“) (citations omitted). When summation commentary transgresses the boundaries of the broad latitude otherwise afforded to counsel, a trial court must grant a party‘s motion for a new trial if the comments are so prejudicial that “it clearly and convincingly appears that there was a miscarriage of justice under the law.”
Defendants claim that the summation remarks made by plaintiff‘s counsel effected a miscаrriage of justice. They state that counsel‘s comment asking where are the independent hematologists and cardiologists was “knowingly misleading and inaccurate” and that counsel‘s statement that Dr. Hochberg was not qualified as an expert violated the doctrine of judicial estoppel because it was “clearly inconsistent” with the representations that counsel made to the motion judge. Defendants further argue that the comments regarding the medical journal articles and the decedent‘s falling hematocrit levels were inaccurate, unsupported by expert testimony, and had the potential to distort the jury‘s findings.
Plaintiff maintains that her counsel‘s summation comments were proper and that the Appellate Division was correct in reversing the trial court‘s order for a new trial. Plaintiff states that counsel‘s comment about the decendent‘s falling hematocrit levels was appropriate because Dr. Adelson testified on that issue, but, even if the Court were to find that he did not, the trial court‘s curativе instruction adequately redressed any error caused by that comment or by counsel‘s reference to the medical journal articles. Further, plaintiff argues that her counsel‘s comment involving Dr. Hochberg‘s qualifications did not violate the doctrine of judicial estoppel. She reasons that although counsel‘s representations to the motion judge concerned Dr. Hochberg‘s competency to testify, his summation comment spoke to the weight that the jury should afford to the doctor‘s testimony. Finally, plaintiff states that counsel‘s comment asking where are the independent experts in hematology and cardiology was not improper because that comment was a response to defense counsel‘s summation in which defense counsel claimed that defendants are the most qualified to serve as experts because they actually were present at the time of the events. Plaintiff states that “the jury was entitled to hear both sides” and that “[a]ny other analysis would require plaintiff‘s
B.
The trial court found that three of the summation comments made by plaintiff‘s counsel cumulatively were so prejudicial as to require a new trial. Because we agree that counsel‘s comment asking the jury to draw an adverse inference from defendants’ failure to call any independent cardiologists necessitates a new trial, we begin our analysis with a discussion of that comment.
As explained, during his summation plaintiff‘s counsel commented on defendants’ failure to call independent hematologist and cardiologist experts. He stated: “Now, ask yourselves where are the outside objective, independent experts in hematology for the defense? This is a bleeding and clotting case. Where are the outside independent experts in cardiology?” That comment implies that the reason that defendants did not present outside hematology and cardiology experts is because they could not find any such experts willing to testify on their behalf. We find no error with counsel‘s reference to independent hematologists in view of the fact that defendants never sought to introduce testimony from an independent hematologist. However, plaintiff‘s counsel knew that defendants had two independent cardiologists who were precluded from testifying for procedural reasons, namely plaintiff‘s own motion. Plaintiff‘s counsel also knew that the jury was unaware of that procedural bar, and thus the summation comment ultimately played on that ignorance and implied an untruth.
To remedy the prejudice caused by untrue statements or inferences, trial courts may, depending on the severity of the prejudice, issue a curative instruction or grant a mistrial. See Tomeo v. N. Valley Swim Club, 201 N.J. Super. 416, 421, 493 A.2d 544 (App. Div. 1985). Our courts have found mistrials to be necessary in a number of circumstances. See, e.g., ibid. (granting new
The Court of Appeals of Missouri found that the prejudice created by an untrue inference, one substantially the same as that in this matter, necessitated a new trial. Calvin v. Jewish Hosp. of St. Louis, 746 S.W.2d 602, 605 (1988). Calvin involved a medical malpractice claim in which the defendant hospital was barred from submitting the name of an expert because the plaintiff filed a motion to bar the expert as untimely. Id. at 603-04. During his summation, the plaintiff‘s counsel then asked the jury to draw an adverse inference from the hospital‘s failure to present expert testimony. Id. at 605. For that and other reasons, the court remanded the matter for a new trial, stating: “When a witness’ testimony is excluded on an attorney‘s motion, it is misconduct constituting manifest injustice and thus reversible error if that attorney requests the jury to draw an adverse inference from his opponent‘s failure to produce that witness....” Ibid. (citing State v. Hammonds, 651 S.W.2d 537, 538-39 (Mo. Ct. App. 1983) (finding new trial necessary when prosecutor informed jury that witness did not testify because witness did not want to perjure himself although prosecutor knew that real reason witness did not testify was that court excluded witness, on prosecutor‘s motion, after defendant disclosed witness to state in untimely manner)).
Plaintiff argues that the adverse inference was proper in light of the missing-witness doctrine, which provides that when a party fails to call a witness who “would serve to elucidate the facts in issue,” opposing counsel may ask the court to give a missing-witnеss instruction to the jury or draw the adverse inference him or herself. State v. Clawans, 38 N.J. 162, 170, 172, 183 A.2d 77 (1962). That doctrine is inapposite to this matter, however, because a crucial requirement of the doctrine is that the missing witness was available and within the party‘s power to produce. Id. at 171, 183 A.2d 77; Wild v. Roman, 91 N.J. Super. 410, 414, 220 A.2d 711 (App. Div. 1966). Given the trial court‘s order barring the three experts, the experts were not within defendants’ power to produce.
Finally, plaintiff cites Lovenguth v. D‘Angelo, 258 N.J. Super. 6, 609 A.2d 47 (App. Div. 1992), appeal dismissed, 133 N.J. 417, 627 A.2d 1128 (1993), for the proposition that improprieties at trial may be permitted to right the wrongs committed by the opposing party. Plaintiff claims that she was entitled to respond to defense counsel‘s summation comment that defendants were the most qualified experts. We fail to see the relevancy of Lovenguth to the matter before us because plaintiff does not allege that defense counsel erred in his summation to the jury.
C.
We briefly address the remaining disputed summation comments to provide guidance to the parties on remand. In respect of the comment made by plaintiff‘s counsel regarding the decedent‘s falling hematocrit levels, we agree with the Appellate
Concerning counsel‘s summation remark about Dr. Hochberg‘s expertise, we find the remark generally acceptable with one qualification. The gravamen of the remark involved merely repeating Dr. Hochberg‘s own statements on cross-examination. As the Appellate Division found in rejecting defendants’ judicial estoppel claim, were we to preclude plaintiff‘s counsel from challenging the testimony of defendants’ only outside expert, we would unduly handicap plaintiff‘s case. Plaintiff‘s counsel is entitled to rebut the statements made by defense counsel in his summation, which attacked the testimony of plaintiff‘s experts and claimed that defendants are the most qualified experts in this matter. However, in light of counsel‘s prior statement to the motion judge that he “believe[s] [Dr. Hochberg] is competent to testify and cover the defendant‘s [sic] case” and that the testimony of the additional three experts would be cumulative of that of Dr. Hochberg, we disapprove of that portion of counsel‘s summation in which counsel directly stated that Dr. Hochberg “is clearly not qualified to give opinions in this case.”
IV.
Accordingly, we reverse the judgment of the Appellate Division, reinstate the trial court‘s order granting a mistrial, and remand the matter for further proceedings consistent with this opinion.
Justice RIVERA-SOTO, concurring in part and dissenting in part.
In this appeal in a medical malpractice case, the majority first explains that, “[a]pplying an abuse of discretion standard to the
According to the majority, plaintiff‘s rhetorical question in summation asking “[w]here are the outside independent experts in cardiology” was error because it “implied an untruth.” Ante, 187 N.J. 433-36, 901 A.2d 919-22 (2006). That “untruth” is that defendants did have experts in cardiology who were barred from testifying. That bar was entirely of defendants’ own making: those expert witnesses were barred because defendants unreasonably and without justification delayed providing their expert reports in discovery, a point on which both the majority and I agree. However, the majority and I disagree on whether plaintiff was entitled to focus on defendants’ failure of proof resulting from the proper exclusion of defendants’ proposed experts. In the majority‘s view, counsel in summation must hew to some metaphysical standard of truth, regardless of the state of the record before the fact finder. That standard ignores, and does grave violence to, the basic tenets of our adversary system.
We have repeatedly stressed that the latitude counsel is allowed in summation necessarily is circumscribed by the evidence admitted in the case. We have made clear that “[t]he scope of summation argument must not exceed the ‘four corners of the evidence’ ” and that “[t]he ‘four corners’ include the evidence and all reasonable inferences drawn therefrom.” State v. Loftin, 146 N.J. 295, 347, 680 A.2d 677 (1996) (citations omitted). We have also made patent that “[a] trial court must exclude from summation those arguments that the evidence does not reasonably support.” State v. Reddish, 181 N.J. 553, 629, 859 A.2d 1173 (2004) (citation omitted). There is a salutary reason for this rule: by limiting the universe of what can be discussed in summation to the evidence properly before the tribunal, the propriety of a summation can be readily gauged and litigants are on fair notice of what is fair game and what is prohibited. Thus, the boundaries of proper summation are, and must remain, the evidence properly placed before the fact finder. Any rule that seeks to define the scope of summation differently is both practically unworkable and theoretically unsound.
Yet, that is the very exception the majority crafts. According to the majority, plaintiff was barred from exploiting in summation a procedural advantage even the majority concedes was fairly fought and won. Instead, the majority takes back with one hand what it gives with the other, denying defendants the opportunity to рresent independent cardiology experts because their disclosure was untimely but prohibiting plaintiff from commenting on their absence.
If our adversary system is to function well, and function well it must, it cannot be as arbitrary as the majority would have it. The rule, to date, has been straightforward: litigants are entitled to argue in summation based on the evidence properly presented to the fact finder, together with all reasonable inferences therefrom. That leeway must perforce include the ability to argue the absence of proofs by a party. That, in a nutshell, is all plaintiff did here: she argued the self-evident fact that defendants did not present any independent cardiologists when, in truth and in fact, defendants did not present any independent cardiologists.
The problem with the majority‘s reasoning does not end with its impracticality. It is also theoretically unsound. In this case, the majority condemns a summation comment concerning a party‘s failure of proof because that failure itself was caused by the
Because the summation by plaintiff‘s counsel was, in my view, entirely proper based on the evidence before the fact finder, I would affirm the judgment of the Appellate Division in all respects and I would reinstate the judgment in favor of plaintiff.
I respectfully dissent.
For reversal and reinstatement—Chief Justice PORITZ and Justices LONG, LaVECCHIA, ZAZZALI, ALBIN and WALLACE—6.
For concurrence in part/dissent in part—Justice RIVERA-SOTO—1.