NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1874-12T4

FRANCES PARKER, Individually and as General Administratrix of the ESTATE OF DALE S. APPROVED FOR PUBLICATION PARKER, March 17, 2015 Plaintiff-Appellant, APPELLATE DIVISION v.

JOHN W. POOLE, M.D.,

Defendant-Respondent,

and

HOLY NAME HOSPITAL and DOUGLAS BENSON, M.D.,

Defendants. ————————————————————————————————————————

Argued October 7, 2014 – Decided March 2, 2015

Before Judges Yannotti, Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L- 7098-09.

Dennis T. Smith argued the cause for appellant (Pashman Stein, attorneys; Mr. Smith and David G. White, on the briefs).

Philip F. Mattia argued the cause for respondent (Mattia & McBride, P.C., attorneys; Mr. Mattia, on the brief). The opinion of the court was delivered by

HOFFMAN, J.A.D.

Plaintiff Frances Parker, individually and as administrator

of the estate of her late husband, Dale Parker ("Mr. Parker"),

appeals from the no cause jury verdict returned in the medical

malpractice case against her husband's surgeon, defendant John

W. Poole, M.D., and from the order denying plaintiff's motion

for a new trial. Plaintiff contends that the trial court erred

in excluding certain evidence. For the reasons that follow, we

reverse and remand for a new trial.

I.

We begin by summarizing the most pertinent trial evidence.

Mr. Parker was diagnosed with colon cancer when a tumor was

discovered during a colonoscopy. A biopsy had revealed that Mr.

Parker had an invasive adenocarcinoma of the colon,1 and he was

referred to defendant to immediately undergo surgery to remove

the tumor. Defendant, a board-certified general surgeon, saw

decedent for a surgical consult on February 13, 2009. Defendant

performed the surgery, a transverse colon resection, to remove

the tumor on February 19, 2009. After removing the tumor,

1 According to defendant, invasive adenocarcinoma of the colon is a "pathologic diagnosis," which "means the tumor has spread beyond the basic membrane of the lining of the intestine," creating "a risk for it to . . . further spread."

2 A-1874-12T4 defendant performed an open anastomosis, sewing the colon back

together, to close the opening. Defendant reported no

difficulties during the surgery.

After the surgery, Mr. Parker remained in the hospital. At

some point between February 22 and 23, he developed

complications. On February 23, nurses observed blood-tinged

fluid coming from the surgical site. Examination by defendant

revealed that Mr. Parker had developed a dehiscence.2 Based on

the risk of the incision re-opening, defendant decided to

perform a second operation to repair the dehiscence.

On February 24, defendant performed the second surgery.

During the procedure, defendant noticed some "murky fluid in the

abdominal wound." As a result, he investigated to determine if

there was an anastomotic leak, a hole or perforation in the

intestine that allows intestinal contents to leak into the

abdomen. While defendant testified, "We never saw a hole[,]

[w]e never saw a perforation," he nevertheless decided to resect

or remove the anastomosis. He explained, "I felt the

anastomosis was not perfect[;] . . . my job as a surgeon was to

make the anastomosis perfect." Defendant continued to follow

Mr. Parker after the surgery on the 24th; however, "he had a

2 According to plaintiff's surgical expert, David Befeler, M.D., "dehiscence is a failure of the abdomen wall closure," meaning "the abdominal wall comes apart."

3 A-1874-12T4 cataclysmic rapid demise and ultimately expired early on the

26th."

Plaintiff's theory in the case was that defendant

negligently performed the first anastomosis, creating a leak,

which led to sepsis, and that defendant then negligently failed

to address the sepsis. Specifically, plaintiff contended that,

because defendant encountered evidence of infection in the

second surgery, he should have performed an ileostomy, a

procedure where a loop of small bowel would have been

externalized to stop feces from coming into the abdomen, and

then drained the abdomen to remove the purulent fluids, and

allowed Mr. Parker to heal. Once healed, Mr. Parker could have

undergone a re-anastomosis. Defendant indicated that he

performs such "ostomy" procedures "all the time."3

The defense disputed the source of the sepsis which caused

Mr. Parker's death, as well as the timing of the onset of the

sepsis. At trial, plaintiff sought to introduce defendant's

deposition testimony, specifically, an exchange in which

defendant responded to a question about the cause of Mr.

Parker's death:

Q: Why did Mr. Parker die?

3 Defendant explained, "when we externalize the colon, it's a colostomy, when we externalize the small bowel, it's an ileostomy."

4 A-1874-12T4 A: It appears that he got septic, though I'm not sure why he had such a rapid demise.

Q: To what did you attribute the sepsis?

[Defendant's Counsel]: Objection, but you can answer.

A: I have to assume that it was related to the anastomotic leak.

When plaintiff sought to read this deposition excerpt into

the record as part of her case, defendant objected, arguing that

the language he used in response ("I would have to assume") was

speculative. Plaintiff argued that it was an admission by a

party-opponent and thus admissible under N.J.R.E. 803(b)(1),

regardless of any claimed speculative nature.

The trial court sustained the objection, finding the

testimony speculative. The court also appeared to question the

propriety of plaintiff attempting to elicit expert testimony

from defendant.

Essentially, what plaintiff urges — it converts [defendant] into an expert witness. It's asking him to render an opinion when, in fact, he's being called as a fact witness. Now we have a number of expert witnesses who have opined as to Mr. Parker's cause of death. [I]t's not really a [N.J.R.E.] 701 [issue], where we're asking for opinion testimony of a lay witness because it's not [an] opinion as to . . . how fast was he going in your common experience.

5 A-1874-12T4 It's an opinion that requires expertise. The reality, it seems, is that the . . . cause of death isn’t so much the ultimate question here. . . . [T]he ultimate question is, whether or not [defendant] departed from the standard of care required of him. And I do think that it is asking for, again over the objection of [defendant's] attorney, for him to become an expert witness against himself.

And in addition to that, it is cumulative and it is calling for speculation on his part. And therefore, I'm going to uphold [defendant's] objection and I'm not going to allow it to be read into evidence[.]

On direct examination, defendant testified that "Mr. Parker

had no evidence of sepsis at the time leading up to the [second]

surgery, at the time of the surgery, and immediately in the

recovering room after the surgery."4 Nevertheless, in the

operative report defendant dictated immediately after the second

surgery, he wrote, "I did not want to take the chance the

anastomosis was leaking and would cause further sepsis."

(Emphasis added). Defendant attempted to explain this apparent

contradiction in the following colloquy, still on direct

examination:

4 According to defendant, "Sepsis is an infection that causes systemic changes." Its symptoms are "increased respiratory rate, an increased pulse, . . . an elevated temperature and an elevated white [blood cell] count." Sepsis can be diagnosed by the presence of two such symptoms as well as a "documented source of infection[.]"

6 A-1874-12T4 Q: When you said you were concerned it would cause further sepsis what did you mean by further sepsis?

A: I meant at a point in time. I might have actually dictated future sepsis but I mean, further down the road. I would – a chance at this would cause sepsis. So unfortunately – I probably dictated like I speak but they transcribe it but –

Q: It would have been future as opposed to further?

A: Well, I'm dictating a medical record I'm not a novelist. In my mind, I was using – it might not be the most eloquent – but I'm trying to say, I couldn't take the chance of this would – anastomosis would break down and cause sepsis in the future, cause further sepsis. That was my job to not take that chance.

Q: Did there come a time that Mr. Parker did become septic?

A: Yes, there was.

Q: When was that?

A: He became septic several hours after the surgery in the intensive care unit.

Later that day, during cross-examination, defendant

disputed that he saw evidence of an anastomotic leak during the

second surgery, despite his operative report listing "[p]robable

anastomotic leak" among his post-operative diagnoses:

Q: Eventually, you determined that there was a probabl[e] anastomotic leak that

7 A-1874-12T4 you encountered in the second surgery[,] right?

A: That's not true. What . . . I said — and I said yesterday is that when we got in there, that putting . . . everything together . . . the anastomosis did not look perfect. And I said it was my job, as the surgeon, to make sure that the patient is as perfect as I can make [him]. So, I made the decision that [I] needed to resect that anastomosis.

Q: You're denying that you . . . determined that there was a probabl[e] anastomotic leak?

A: Yes, I am.

. . . .

Q: Do you recognize that?

A: That's my operating report from that day; correct.

Q: Mmm-hmm. And the postoperative diagnosis that you put down includes probabl[e] anastomotic leak[,] right?

A: That's correct. Look, you asked me if I determined that’s what it was. That’s different than a determination . . . . That’s what I'm concerned about. That it wasn't perfect and I redid it.

. . . .

Q: I'll jump back to something that we actually . . . advanced to before. In the final analysis, we did determine that there was a probable anastomotic leak in this patient, right?

8 A-1874-12T4 A: No.

After the completion of defendant's testimony, plaintiff

moved for reconsideration of the court's decision to exclude

defendant's deposition testimony ("I have to assume that it was

related to the anastomotic leak") regarding the cause of Mr.

Parker's sepsis. [T]he court denied the motion, reiterating,

that "the comment that [defendant] nevertheless articulated was

speculative. And, in fact, he said 'I have to assume.' Which,

I think, is as great an indication of speculation [as] you're

going to get, in any case."

The next day, the jury returned a verdict, finding that

defendant had not deviated from accepted standards of care and

was therefore not negligent.5 Plaintiff filed a motion for a new

trial, arguing that defendant's deposition testimony should have

been admitted under N.J.R.E. 803(b)(1) as an admission by a

party-opponent, and that the exclusion of this evidence resulted

in a clear miscarriage of justice under the law. R. 4:49-1.

The court denied the motion, and this appeal followed.

On appeal, plaintiff seeks a new trial, contending that the

trial court's erroneous evidentiary rulings regarding

defendant's deposition testimony constituted reversible error.

5 The jury voted six to one that defendant did not deviate from accepted standards of care in his treatment of Mr. Parker.

9 A-1874-12T4 Specifically, plaintiff argues that the trial court improperly

excluded defendant's deposition testimony, and asserts that the

testimony was admissible under N.J.R.E. 803(b)(1), the hearsay

exception for statements by a party-opponent. Plaintiff

contends that defendant's deposition testimony is not

speculative, but emphasizes that the exception applies even if

the statement were speculative. Finally, plaintiff argues that

the deposition testimony is not subject to exclusion under

N.J.R.E. 403.

II.

"In reviewing a trial court's evidential ruling, an

appellate court is limited to examining the decision for abuse

of discretion." Hisenaj v. Kuehner,

(2008);

accord Purdy v. Nationwide Mut. Ins. Co.,

(App. Div. 1982). We are required to disregard an error

unless, after consideration, we find "it is of such a nature as

to have been clearly capable of producing an unjust result[.]"

R. 2:10-2.

A.

We first address the trial court's comments suggesting that

defendant's deposition testimony about the cause of Mr. Parker's

sepsis might be excludable because "it converts [defendant] into

10 A-1874-12T4 an expert witness[,]" and asks "him to render an opinion when,

in fact, he's being called as a fact witness."

"[A] plaintiff in a medical malpractice [action] can ask

questions of a defendant doctor in a deposition which seek to

elicit expert opinions relevant to the diagnosis and treatment

of the plaintiff." Hutchinson v. Atl. City Med. Ctr.-Mainland,

(App. Div. 1998) (citing Rogotzki v.

Schept,

(App. Div. 1966)).

It is clear that defendants may be deposed as to the facts of the treatment they gave – what they did, what they saw, and the diagnoses rendered. It is also clear that they may not be asked to respond to purely hypothetical questions. But we think it plain that it is not "opinion" to have them explain why something was done or not done.

[Rogotzki, supra,

.]

In Rogotzki, we rejected the argument "that a treating

physician who is a party defendant may not be compelled to

answer on depositions such questions as call for his expert

opinions or conclusions related to the treatment he rendered."

.

There is nothing unfair about such a practice. Unlike his counterpart in a criminal prosecution, the defendant in a civil suit has no inherent right to remain silent or, once on the stand, to answer only those inquiries which will have no adverse effect on his case. Rather, he must, if called as a witness, respond to virtually all questions aimed at eliciting information

11 A-1874-12T4 he may possess relevant to the issues, even though his testimony on such matters might further the plaintiff's case. We cannot agree with the suggestion that it is somehow neither sporting nor consistent with the adversary system to allow a party to prove his case through his opponent's own testimony but, whatever the merits of this view, we prefer to believe that, in a situation such as the present, [t]he ultimate requirement that judicial decisions be based on the . . . facts overcomes any detriment which might be suffered by the adversary system.

[Id. at 149 (alterations in original) (quoting McDermott v. Manhattan Eye, Ear & Throat Hosp.,

(Ct. App. 1964) (citations and internal quotation marks in McDermott omitted)).]

Our Supreme Court subsequently indicated its approval of

Rogotzki, stating, "Proof of deviation elicited from the

defendants themselves, because they are competent professionals,

could be relied on by the jury." Lanzet v. Greenberg,

(1991) (citing

-

49); see also,

(holding that the trial court properly allowed plaintiffs to use

the defendant doctor's deposition testimony as evidence of the

applicable standard of care).

Furthermore, it is well established that a treating doctor

testifying as a fact witness is permitted to testify about the

cause of the patient's disease or injury, because causation is

an essential part of diagnosis and treatment. See Stigliano v.

12 A-1874-12T4 Connaught Labs., Inc.,

(1995) (holding "the

characterization of [such] testimony as 'fact' or 'opinion'

creates an artificial distinction"). "[T]estimony about the

likely and unlikely causes of [a patient's condition] is factual

information, albeit in the form of opinion."

The questioning of defendant at his deposition reasonably

sought to ascertain defendant's opinion regarding the timing and

cause of Mr. Parker's sepsis, two critical issues in the case.

As the surgeon who performed both operations, defendant was

arguably in the best position to make these determinations.

From his operative report, it would appear that he did, in fact,

make these determinations by diagnosing a "[p]robable

anastomotic leak[,]" and his statement that he "did not want to

take the chance the anastomosis was leaking and would cause

further sepsis."

B.

We next address the trial court's determination to exclude

defendant's deposition testimony regarding the cause of Mr.

Parker's sepsis because it was "speculative."

N.J.R.E. 803(b)(1) provides that a "statement offered

against a party which is . . . the party's own statement, made

either in an individual or in a representative capacity," is not

excluded by the hearsay rule. Nevertheless, testimony

13 A-1874-12T4 admissible under this rule is still subject to other

restrictions. Biunno, Weissbard & Zegas, Current N.J. Rules of

Evidence, comment 1 on N.J.R.E. 803(b)(1) (2014) ("Note that

[N.J.R.E.] 403 is not the exclusive means for excluding a

statement admissible under [N.J.R.E. 803(b)(1)]. In appropriate

cases other constitutional, statutory or rule requirements might

preclude a statement admissible under this Rule.").

N.J.R.E. 701 generally restricts the subject matter of lay

witness testimony:

If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue.

The question is thus whether N.J.R.E. 701 restricts testimony

otherwise admissible under N.J.R.E. 803(b)(1). Our courts have

not yet addressed this issue. Therefore, we look to federal

precedent interpreting analogous provisions of the Federal Rules

of Evidence.

F.R.E. 801(d)(2)(A) is the parallel provision to our

N.J.R.E. 803(b)(1). It provides that a "statement . . . offered

against an opposing party[,] . . . made by the party in an

individual or representative capacity[,]" is not hearsay. Thus,

the substance of the provisions is essentially the same.

14 A-1874-12T4 Federal courts have addressed the interaction between the party-

opponent rule and other provisions. The courts have

specifically exempted statements under F.R.E. 801(d)(2)(A) from

the personal-knowledge requirement for testimony. See, e.g.,

United States v. Ammar,

(3d Cir.) ("[I]t is

clear from the Advisory Committee Notes that the drafters

intended that the personal knowledge foundation requirement of

[F.R.E.] 602 should . . . not [apply] to admissions . . .

admissible under [F.R.E.] 801(d)(2)."), cert. denied,

,

,

(1983); Mahlandt v. Wild

Canid Survival & Research Ctr., Inc.,

, 630-31 (8th

Cir. 1978) (holding that the personal knowledge requirement does

not apply to F.R.E. 801(d)(2)).

Additionally, statements by a party-opponent are not

subject to trustworthiness considerations. "Trustworthiness is

not a separate requirement for admission under [F.R.E.]

801(d)(2)(A)." Jewell v. CSX Transp., Inc.,

, 365

(6th Cir. 1998); accord United States v. Pinalto,

(10th Cir. 1985). "The admissibility of statements of a

party-opponent is grounded not in the presumed trustworthiness

of the statements, but on 'a kind of estoppel or waiver theory,

that a party should be entitled to rely on his opponent's

15 A-1874-12T4 statements.'" Jewell, supra, 135 F.3d at 365 (quoting United

States v. DiDomenico,

(7th Cir. 1996)).

In Donlin v. Aramark Corp.,

(D. Utah

1995), the district court directly addressed the issue of

speculation for party-opponent admissions, and found that "the

fact that the statement is speculative or in opinion form is not

of consequence. Personal knowledge of the witness is not

required in a party admission circumstance."

This interpretation echoes 4 Wigmore on Evidence § 1053

(Chadbourn rev. 1972):

A primary use and effect of [a party] admission is to discredit a party's claim by exhibiting his inconsistent other utterances. It is therefore immaterial whether these other utterances would have been independently receivable as the testimony of a qualified witness. . . . In particular, personal knowledge, as indispensable to a witness, is not required.

[Ibid. (emphasis in original) (citations omitted).]

Wigmore goes on to specifically address the lay opinion rule,

saying that it "does not limit the use of a party's admissions

[because] [t]he reason for that rule does not apply to a party's

admissions." Id. at § 1053(3).

Thus, federal precedent supports the position that N.J.R.E.

701 does not independently bar speculative testimony admitted

under N.J.R.E. 803(b)(1). Therefore, we conclude the trial

16 A-1874-12T4 court erred in excluding defendant's deposition testimony

regarding the cause of Mr. Parker's sepsis on the basis that it

was speculative.

We further note that the record does not provide any actual

support that the deposition testimony was speculative. The

court failed to hold a Rule 104 hearing to explore the issue

further. While it may be possible the testimony was

speculative, the record lacks any evidence or convincing

argument explaining how or why the testimony constituted

speculation.

In summary, we conclude defendant's deposition testimony

regarding the cause of Mr. Parker's sepsis is admissible under

N.J.R.E. 803(b)(1). The statements were made by defendant, a

party to the action, and were offered by plaintiff against him

at trial. Plaintiff's question was not improper, and whether

defendant was speculating when he answered is irrelevant to the

statement's admissibility.

C.

Finally, we address the application of N.J.R.E. 403. The

trial court's oral opinion on plaintiff's motion for new trial

did not explicitly address N.J.R.E. 403, but the court stated,

"I believe . . . the statement by [defendant] was prejudicial

and not probative, and that's why I excluded it."

17 A-1874-12T4 N.J.R.E. 403 provides:

[R]elevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.

Under this test, "[e]vidence should be barred if its

probative value 'is so significantly outweighed by [its]

inherently inflammatory potential as to have a probable capacity

to divert the minds of the jurors from a reasonable and fair

evaluation of the basic issue[s].'" Green v. N.J. Mfrs. Ins.

Co.,

(1999) (alterations in original) (quoting

State v. Thompson,

(1971)). "The burden is

clearly on the party urging the exclusion of evidence to

convince the court that the N.J.R.E. 403 considerations should

control." Rosenblit v. Zimmerman,

(2001)

(citation and internal quotation marks omitted).

Due to the nature of the weighing test, highly prejudicial

evidence may only be admitted if it has "overwhelming probative

worth." Green, supra,

. However, "'[t]hat

evidence is shrouded with unsavory implications is no reason for

exclusion when it is a significant part of the proof.'" State

v. Stevens,

(1989) (quoting State v. West,

(1959)).

18 A-1874-12T4 Moreover, N.J.R.E. 403 concerns only undue prejudice.

State v. Bowens,

(App. Div. 1987).

"The question . . . is not merely whether the treating

doctor['s] testimony [was] prejudicial[,] . . . but whether it

[was] unfairly so."

.

Generally, much of the evidence introduced at an adversarial

trial is prejudicial to the opposing party, and we "would ill-

serve the cause of truth and justice if we were to exclude

relevant and credible evidence only because it might help one

side and adversely affect the other."

Counsel is permitted to attack the credibility of a witness

on cross-examination. N.J.R.E. 611(b). "Cross-examination is

the greatest legal engine ever invented for the discovery of

truth." State v. Silva,

(1993) (citation and

internal quotation marks omitted). Any witness "may be cross-

examined with a view to demonstrating the improbability or even

fabrication of his testimony."

(citation and

internal quotation marks omitted).

A prior inconsistent statement may also be used to attack

the credibility of a witness. N.J.R.E. 607;

; State v. DiRienzo,

(1969).

Deposition testimony of a witness may be used "for the purpose

19 A-1874-12T4 of contradicting or impeaching" a witness at trial. R. 4:16-

1(a).

Here, the fact that defendant testified at deposition

consistent with his operative records but then testified

differently at trial, attempting to discredit his own operative

reports, clearly went to the issue of his credibility.

Accordingly, the trial court erred when it did not allow

plaintiff's counsel to impeach defendant's credibility with his

prior inconsistent deposition testimony.

Defendant's deposition testimony strikes at the heart of

this case. As a statement by the surgeon who actually performed

the procedures and observed, first hand, Mr. Parker's condition,

it carries compelling probative worth.

("[T]he probative value of the treating doctors'

testimony outweighs its prejudicial effect under N.J.R.E. 403"

because of their first hand proximity to the patient's

condition.). As the trial court noted concerning the expert

witnesses here, "[t]he people who articulate that there was an

anastomotic leak were not in the surgery. And, really had no

direct way of making that determination." Defendant, however,

was necessarily present at the surgery, affording him the

ability to make direct observations.

20 A-1874-12T4 The existence of the anastomotic leak and its effect were

the central issues at trial. While the statement is

prejudicial, the undue prejudice to defendant is minimal because

the statement at issue is his, rather than a third party's

statement. "[T]he party who made the out-of-court statement

cannot complain of his [or her] inability to confront and cross-

examine the declarant, since he [or she] is the declarant."

Biunno et al., supra, comment 1 on N.J.R.E. 803(b)(1).

D.

Lastly, we must consider whether the trial court's decision

to exclude defendant's deposition testimony was "clearly capable

of producing an unjust result[.]" R. 2:10-2.

The proofs in this case do not overwhelmingly favor one

party or the other; hence, the improper exclusion of defendant's

contradictory deposition testimony could have been the deciding

factor in his favor. Cf. State v. Frost,

(1999)

(noting that where credibility is the central issue and the

"jury must choose which of two opposing versions to credit, it

simply cannot be said that the evidence is overwhelming[ly]"

against one litigant or the other). The risk that the jury was

improperly influenced by the trial court's exclusion of

defendant's deposition testimony is particularly high here

21 A-1874-12T4 because defendant's credibility was central to the outcome of

the case.

Under the circumstances of this case, we are convinced that

this error was "clearly capable of producing an unjust

result[.]" R. 2:10-2. The excluded deposition testimony bore

directly on the issue of defendant's negligence and thus could

readily have been outcome-determinative. Because the exclusion

of this evidence could have affected the jury's determination of

whether defendant was negligent, a new trial is required.

Reversed and remanded for a new trial.

22 A-1874-12T4