Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Plaintiffs Kathleen and Vincent Verdicchio, individually and as executors of the estate of their son, Stephen Verdicchio, filed a wrongful death and survivorship action against defendant Dr. Anthony Ricca alleging malpractice in connection with his failure to timely diagnose Stephen’s cancer. At the end of plaintiffs’ case and again at the conclusion of the trial, Ricca moved to dismiss the complaint. The trial court reserved decision on both motions. The jury returned a verdict declaring that Ricca had been negligent in his treatment of Stephen; that the negligence “increased the risk” of a bad outcome; and that that increased risk was a “substantial factor” in bringing about the ultimate harm that befell Stephen. Because it concluded that the underlying disease, osteosarcoma, was responsible for 45 percent of the outcome and Ricca for 55 percent, the judgment was molded to $4.4 million. Ricca then moved for a judgment nothwithstanding the verdict. The trial court granted that motion and the previous dismissal motions, essentially holding that the absence of proof regarding metastasis was a fatal flaw in plaintiffs’ increased-risk analysis. The Appellate Division affirmed, concluding that “plaintiffs failed to establish by expert testimony that Stephen was suffering from non-metastasized cancer at the time of the alleged deviation by defendant, and thus, failed to meet their burden of proof in an ‘increased risk’ case under the modified proximate causation test enunciated in Evers v. Dollinger, 95 N.J. 399 (1984), Scafidi v. Seiler, 119 N.J. 93 (1990), and Gardner v. Pawliw, 150 N.J. 359 (1997).” Plaintiffs’ petition for certification and Ricca’s cross-petition were granted. Ricca, a board-certified internist, became Stephen’s primary-care physician on May 22, 1993, when Stephen was 17 years old. On that visit, he recorded that Stephen was generally healthy but experienced some lethargy and difficulty running track at school. He also reported bowel movements after each meal. Stephen saw Ricca again on August 3, to obtain medical clearance to compete on the track team. Mrs. Verdicchio said, during that visit, she told Ricca that Stephen continued to have bowel problems and some difficulty breathing. Ricca ordered blood tests, a chest X-ray, and an electrocardiogram that all proved to be normal. He said neither Mrs. Verdicchio nor Stephen mentioned any stomach pains, bowel problems or diarrhea. He examined Stephen’s legs and knees and did not record any evidence of pain or deficits in range of joint motion. Ricca again saw Stephen on October 2, when he administered a flu shot. Mrs. Verdicchio said she made that appointment because Stephen was not feeling well, was still tired and lifeless, and continued to have bowel problems and to lose weight. Ricca denied that those symptoms were mentioned during the visit. His records indicate that Stephen went in for a flu shot. Mrs. Verdicchio testified that in response to her expressed concerns about Stephen’s bowel problems, Ricca told her she was a paranoid mother not ready to let go of her son and that that was adding stress for Stephen. She also said that he told her the bowel movements could be a sign of anorexia, which is found many times in runners, and that Stephen could also be using laxatives or other drugs. Ricca denied those statements. On January 25, 1994, Stephen and his mother saw Ricca. She said that Stephen complained of problems with bowel movements, diarrhea, weight loss and pain in his left leg. Ricca denied that either mentioned leg pain. His “Patient Chart Notes” indicate that Stephen “appears seriously ill.” The chart also indicated under “Current Complaint” — “diarrhea, constipation, and stomach pains.” The patient history also indicated “some arthralgias of the knees but the patient is a track runner.” Mrs. Verdicchio testified that Ricca never suggested that Stephen was seriously ill. She said that he told them that track runners generally have aches and pains in the legs, and that if Stephen was going to be a track runner, he would have to accept the pain. Ricca testified that he asked Stephen if he was having any joint pain, and Stephen indicated achiness in both knees. The doctor acknowledged that he did not examine Stephen’s legs or knees, attributing the complaint of pain to Stephen’s running. Ricca ordered laboratory tests that revealed an elevated white blood count and elevated neutriphils and uric acid levels. He recommended that Stephen see a gastroenterologist and authorized a referral to Dr. Kern, who examined Stephen on February 4, 9, and 22, 1994. Kern reported to Ricca on March 7 that he had not found evidence of suspected inflammatory bowel disease, and that Stephen had “improved significantly on just Imodium [an over-the-counter drug that stops diarrhea].” Kern indicated that he discussed with Mrs. Verdicchio that Stephen’s symptoms could be related to irritable bowel syndrome secondary to emotional distress relating to his relationship with her. He recommended that if Stephen’s symptoms should recur or not continue to improve, he should be tested to determine if he had malabsorption syndrome. Mrs. Verdicchio testified that after the visit with Kern, Stephen’s condition was getting better but then he suddenly started to loose weight again and was complaining about his leg. She said she called Ricca, who told her to give Stephen a break after the end of the track season and see how he felt. Ricca examined Stephen again on May 3, after Stephen collapsed during a track meet and was experiencing pain in his left leg. Ricca’s notes indicated that Stephen complained of pain before and after, but not during running, from his left hip down to the anterior shin. Ricca recorded “tenderness over left thigh at the lateral aspect with muscle edema.” He recommended rest and then ice followed by heat after running, along with Tylenol for the pain and an Ace bandage for support. He did not weigh Stephen or ask about his bowel problems. He did not order an X-ray. On May 5, Stephen returned to Ricca’s office and was seen by an associate, Dr. Stillwell. Stephen reported that he had applied ice and heat as directed but had continued to run, and had again collapsed during a track meet. Stillwell recommended the same treatment ordered by Ricca. In June 1994, the Verdicchio family went on a cruise. During that time, Stephen appeared to be in great discomfort, crying in the night from the pain in his leg. On July 2, immediately after returning from vacation, Mrs. Verdicchio took Stephen to Ricca’s office. The examination revealed swelling and firmness in the leg that felt “abnormal.” He weighed Stephen and found that he had lost five to seven pounds on the trip. Mrs. Verdicchio said that she insisted that Ricca give her a referral for the orthopedist so that she could make an appointment while they waited for the X-ray results. On July 7 Stephen was examined by Dr. Bernard Murphy, who reviewed the X-rays and found a calcification in the quadriceps musculature and some calcification of the femur. He ordered a magnetic resonance image that revealed a mass in Stephen’s leg. He immediately advised the Verdicchios to take Stephen to the Thomas Jefferson Medical Center in Philadelphia for a biopsy. Stephen was first seen at Thomas Jefferson the next day and was diagnosed with osteosarcoma (a malignant tumor) of his left femur. It was also determined that the cancer had metastasized to his lungs. Mrs. Verdicchio testified that on July 18, she called Ricca and told him that Stephen had been diagnosed with cancer and that the doctors at Thomas Jefferson needed Stephen’s records, especially the most recent X-rays. She said Ricca said that Stephen did not have cancer and that she should bring Stephen home and he would treat him. Ricca acknowledged speaking with Mrs. Verdicchio that day but denied that he made any of those statements. Maureen (Ginger) Mulligan, a co-worker of Mrs. Verdicchio, was permitted to testify that Verdicchio called her, “hysterical,” “sobbing” and “crying,” and related the conversation in which she claimed Ricca denied that Stephen had cancer. Stephen was hospitalized from July 14 to August 3, 1994. A CAT scan of his chest revealed multiple metastatic nodules. A later CAT scan revealed further metastasis to his lungs and abdomen. Stephen underwent surgical procedures to insert an intrafemoral artery catheter from his right leg to his left groin and into the cancer spot for the administration of chemotherapy. In November 1994, he was hospitalized for six days and underwent a thoracotomy in an effort to arrest the spread of the cancer. In January 1995, he was hospitalized for 10 days and his left leg was amputated because he was suffering intractable pain secondary to the cancerous tumor that was unresponsive to medication. In March 1995, Stephen was admitted to Thomas Jefferson for the final time. Nothing more could be done for him medically. He was discharged on March 21. He died at home on May 3, believing that had Ricca diagnosed his cancer earlier, he might have been saved. Plaintiffs offered Dr. Robert Morrow, a certified family physician, as an expert. He noted that during the January 25, 1994, visit, Stephen indicated that he suffered some arthralgias of the knees. He opined that Ricca deviated from the standard of accepted medical care when he failed to examine the “extremities of a child who is complaining of pain in the knees, who is an athlete, who is ill.” When asked if such an examination would be relevant when it appeared that many of the patient’s problems were gastrointestinal, Morrow replied that in the context of a sick child who has lost a large amount of weight, “it becomes vitally important to pursue the symptoms because they might provide an important clue as to the cause of a seriously ill child.” Morrow also testified that the white blood count could be associated with, among other things, cancer of the bloodline. He said elevated neutriphils levels can result from stress or inflammation. He also testified that the uric acid level was “markedly elevated” and that that is “also found in tissue breakdown from tumors either of the bloodline like lymphoma or a leukemia or from solid tumors.” Morrow said that Ricca should have followed up with Stephen after receiving Kern’s report in March 1994. He said that at the May 3 visit, the standard of care required that Ricca order an X-ray or otherwise image the leg to determine the cause of the swelling, and possibly make a referral to an orthopedist if he did not have the expertise to evaluate the problem. Morrow was asked if he knew, within a reasonable degree of medical probability, when the cancer had metastasized to the lung, and he responded, “No, I do not.” He said he had seen no medical evidence that could pinpoint when the cancer had spread to the lungs. When asked whether Stephen would be alive if Ricca had done what he said he should have done based on good medical standards, Morrow said, “The chances of him being alive at five years with the treatments available at that time were 85,” because “current treatments for osteosarcoma have been remarkably successful in nonmetastatic disease.” He also said that he was confident that the mass was present in Stephen’s leg in January 1994. On cross-examination, Morrow said that if Ricca had examined Stephen’s knees during the January 1994 visit, he would have found “an area on his leg of firmness and tenderness because of his muscles being so close to the skin. Without a big fat pad it would have been very easy to uncover at that point a mass . . . on his lateral thigh.” Morrow conceded that at his deposition he testified that he had no opinion whether Stephen’s cancer had metastasized as of May 1994 or as of January 1994. He also explained that his 85 percent figure meant that Stephen had an 85 percent chance of no recurrence of that cancer over a five-year period, and that that figure did not consider what would have happened if Stephen had metastasis as of January 1994. He then said that if Stephen had been diagnosed in May 1994 and that there had been metastasis as of that time, the number would be 20 percent to 30 percent survival after five years. When asked when, in his estimation, Stephen first developed the osteosarcoma, Morrow responded that probably in the fall of 1993. Ricca testified to a starkly different version of his interactions with the Verdicchios. He denied ever refusing or delaying referrals; denigrating Mrs. Verdicchio’s relationship with her son; attributing his condition to anorexia or drugs; insisting that, as a runner, Stephen had to endure pain; refusing to accept the cancer diagnosis; or having any preconceived notions about Stephen’s complaints. He also denied that he deviated from the appropriate standard of medical care in Stephen’s treatment. On cross-examination plaintiffs’ lawyer was permitted to ask Ricca if the Oxford Health Plan provided him with a financial incentive to minimize the number of referrals he made. Ricca denied any knowledge of such a bonus incentive at the time he was treating Stephen. Dr. Stan Parman, a specialist in family and emergency medicine, testified that Ricca had not deviated from the standard of care. He said that because gastrointestinal problems can result in joint pain, it was not unreasonable for Ricca not to examine Stephen’s knees given that his primary complaint was intestinal problems. He testified that Stephen’s white blood count in January 1994, while suggestive of some type of infection, was nonspecific and neither it nor the slightly elevated neutriphils would be indicative of a tumor. He also testified that the uric acid level was within normal limits. On cross-examination, Parman acknowledged that in his report he stated that “one could postulate that Stephen could have been saved if only the diagnosis had been made earlier.” He explained that that was a generic argument that could be made for all diseases; the sooner it is found, the better the chance of survival. Dr. Arnold Rubin, a board-certified specialist in internal medicine and hematology with a subspecialty in oncology also testified on behalf of Ricca. He conceded that Ricca should have examined Stephen’s knee during the January 25, 1994, visit and that not doing so was a deviation. He indicated that Stephen’s uric acid level in January 1994 was normal and had no connection to his osteosarcoma. Rubin said that as between diagnosis in May or July 1994, Stephen’s “care and treatment” would have been the same. However, he could only state that, had the cancer been discovered in January 1994, Stephen’s “ultimate outcome” would have been no different. Plaintiffs’ fundamental argument is that the holdings of the trial court and the Appellate Division violate the principles established in Evers, Scafidi and Gardner. Ricca contends that plaintiffs failed to elicit competent medical evidence to support the conclusion that the deviation increased Stephen’s risk of harm from the pre-existing condition or that that increased risk was a substantial factor in bringing about the results complained of. He also contends that it was their burden to establish which pain and suffering damages were caused by his negligence and which resulted from the underlying disease and that they failed to do so. A plaintiff in a malpractice action must prove the applicable standard of care, that a deviation has occurred, and that the deviation proximately caused the injury. Generally, it is the causation element that is the most complex. There are different tests for determining proximate cause. The traditional “but for” test that applies in most negligence settings “allow[s] recovery only when the injury is one that would not have occurred ‘but for’ the wrongful act.” Evers, 95 N.J. at 415. However, the “but for” test has its limitations in situations where two or more forces operate to bring about a certain result and “any one of them operating alone would be sufficient.” J.D. Lee & Barry A. Lindahl, Modern Tort Law: Liability & Litigation § 4.03 (West Group 2002). In concurrent-causation cases, New Jersey has adopted a modified standard — the substantial-factor standard — “limited to that class of cases in which a defendant’s negligence combines with a preexistent condition to cause harm — as distinguished from cases in which the deviation alone is the cause of harm.” Battenfeld v. Gregory, 247 N.J. Super. 538, 549 (App. Div. 1991). The substantial-factor test allows the plaintiff to submit to the jury “whether the defendant’s deviation from standard medical practice increased a patient’s risk of harm or diminished a patient’s chance of survival and whether such increased risk was a substantial factor in producing the ultimate harm.” Gardner, 150 N.J. at 376. Once the plaintiff demonstrates that the defendant’s negligence actually increased the risk of an injury that later occurs, that conduct is deemed to be a cause “in fact” of the injury and the jury must then determine whether the increased risk was a substantial factor in bringing about the harm that occurred. Merely establishing that a defendant’s negligent conduct had some effect in producing the harm does not automatically satisfy the burden of proving it was a substantial factor. In Evers, plaintiff alleged that her physician neglected to perform appropriate diagnostic tests on a lump and bleeding sore in her breast that would have revealed breast cancer. At the time of trial, she had taken no medication and had received no chemotherapy or radiotherapy, nor had she experienced a recurrence of the cancer. She claimed that the delay in diagnosis caused her “both physical and emotional injury” and increased the risk that the cancer would recur. The trial court did not allow Evers’ experts’ testimony into evidence because the experts “were unable to quantify the increased risk of recurrence of cancer” and thus entered a judgment for the physician. The Appellate Division affirmed. This Court reversed, saying, 95 N.J. at 414-15: when there is evidence that a defendant’s negligent act or omission increased the risk of harm . . . and that the harm was in fact sustained, “it becomes a question for the jury as to whether or not that increased risk was a substantial factor in producing the harm.” Evers concluded, id. at 417, “If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not . . . require plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly.” Scafidi revisited Evers and directed that the substantial-factor test be applied to all medical-malpractice cases where the plaintiff had been suffering from a pre-existing medical condition when the alleged malpractice occurred. The trial court had declined to instruct the jury that if the defendant’s negligent conduct increased the risk of the premature birth and death, damages should be awarded if the increased risk was a substantial factor in what befell the plaintiff. The Appellate Division held that it was error to refuse to give that charge. This Court agreed. “The jury is first asked to verify, as a matter of reasonable medical probability, that the deviation . . . increased the risk of harm from the preexistent condition.” If the deviation did increase that risk of harm, “we use the ‘substantial factor’ test of causation because of the inapplicability of ‘but for’ causation to cases where the harm is produced by concurrent causes. The ‘substantial factor’ standard requires the jury to determine whether the deviation, in the context of the preexistent condition, was sufficiently significant in relation to the eventual harm to satisfy the requirement of proximate cause.” See 119 N.J. at 108-09. Gardner elucidated on the Scafidi standard. “When the prevailing standard of care indicates that a diagnostic test should be performed and that it is a deviation not to perform it, but it is unknown whether performing the test would have helped to diagnose or treat a preexistent condition, the first prong of Scafidi does not require that the plaintiff demonstrate a reasonable medical probability that the test would have resulted in avoiding the harm. Rather, the plaintiff must demonstrate to a reasonable degree of medical probability that the failure to give the test increased the risk of harm from the preexistent condition. A plaintiff may demonstrate an increased risk of harm even if such tests are helpful in a small proportion of cases . . . .” Id. at 387-89. Reynolds v. Gonzales, 172 N.J. 266 (2002), reaffirmed the “soundness” of the substantial-factor test as a standard in concurrent-cause negligence cases. It noted the potential for confusion inherent in the standard and referred the issue to the Model Civil Charge Committee for modification. It said that pending such modification, “the trial court . . . should explain to the jury that a defendant’s deviation need not be the only cause, nor a primary cause, for the deviation to be a substantial factor in producing the ultimate result. However, defendant’s negligent conduct cannot be a remote or an inconsequential contributing factor. It must play a role that is both relevant and significant in bringing about the ultimate injury . . . . The trial court also should explain to the jury that ‘[s]ome other event [that] is a contributing factor in producing the harm may have such a predominant effect in bringing it about as to make the effect of the actor’s negligence insignificant and, therefore, to prevent it from being a substantial factor.’” Id. at 288. The relevant Model Charges (Civil) §§ 5.36E and 7.11 have since been amended to reflect Reynolds. Because the trial court here granted Ricca’s three motions, plaintiffs’ proofs are treated as uncontradicted and are accorded the benefit of all legitimate inferences. So viewed, it is clear that the trial court and the Appellate Division erred in concluding that those proofs did not establish that Ricca’s actions increased the risk to Stephen. Viewing the evidence in a light most favorable to them, plaintiffs provided a basis for the jury to conclude, to a reasonable degree of medical probability, that: Ricca deviated from the standard of care when he failed to examine Stephen’s leg in January; that at that time Stephen was suffering from cancer that could have been diagnosed if an examination had occurred; that had the cancer been diagnosed, its stage would have been known; that if the cancer was localized, Stephen’s chance of five-year survival on immediate treatment was 85 percent; that if the cancer had metastasized, his chance of survival with treatment was slightly greater than 20 percent to 30 percent; that the mere passage of time had given the cancer a window to metastasize to other areas of his body; that that fact rendered the cancer less remediable and more intractable; and that as a result of Ricca’s malpractice, with its concomitant lack of treatment, Stephen’s chance of survival, whether 85 percent or 20 percent to 30 percent, was reduced. Plaintiffs were required only to show that Ricca’s failure to perform an examination that would have led to the discovery of the cancer increased the risk that Stephen would lose the opportunity for treatment at an earlier stage. They were not required to prove the results of examinations and tests that Ricca neglected to administer. Although their expert was unable to opine whether the cancer had metastasized by January 1994, his testimony was clear that, as a matter of medical probability, Ricca’s delay increased the risk that Stephen would lose the opportunity for effective treatment. Plaintiffs’ case did not depend on proof that Stephen’s cancer had not metastasized in January. Nor were they required to establish statistical probabilities of survival. Morrow’s testimony regarding the effects of the passage of time on untreated osteosarcoma would have been sufficient to meet the plaintiffs’ burden. Nevertheless, they advanced statistical proof that if the cancer had not metastasized Stephen had an 85 percent survival rate. Even if it had metastasized, his survival rate was, according to the evidence, 20 percent-30 percent or higher. Whatever Stephen’s condition was in January, the delay in diagnosis until July increased the risk that he would not be treated effectively. Moreover, there was a basis for the jury to conclude that the increased risk to which Ricca exposed Stephen was a substantial factor in bringing about the harm that ultimately befell him. Ricca’s contentions to the contrary are simply without basis in the law or the record. The Appellate Division erred in affirming the trial court’s entry of judgment in favor of Ricca. A reversal of that determination is required, along with a remand for reinstatement of the jury verdict. Ricca’s cross-petition contends that if the Appellate Division judgment is reversed, a new trial on liability and damages is warranted because of specific trial errors, including the admission of “prejudicial testimony” over objection, “inflammatory and inappropriate comments” made by plaintiffs’ counsel during summation, and because plaintiffs failed to prove which of their damages were attributable to Ricca and which were attributable to the pre-existing disease. The trial court allowed Mrs. Verdicchio to testify that, in a July 18 conversation, Ricca continued to deny Stephen’s cancer in the face of a definitive diagnosis to the contrary. The court correctly found that it shed light on Ricca’s attitude toward the case. The jury could have considered the purported conversation to bear on whether he approached the case as a reasonable physician would have, or whether his preconceived theories about Stephen and his mother, or his belief in the unassailability of his own clinical judgment, affected his approach. At the very least, the testimony bore on which of the versions of the various interactions between Ricca and the Verdicchios the jury would ultimately accept. Thus, it cannot be said that evidence had no logical connection to the issue in the case. The trial court also determined that Mulligan’s statement met the requirements of the excited-utterance exception to the hearsay rule. That determination was supported fully by the record. Her recitation of Mrs. Verdicchio’s emotional state, including sobbing and hysteria immediately after her conversation with Ricca, was relevant in determining whose version of that conversation was more credible. Finally, plaintiffs’ lawyer was permitted to ask Ricca about any financial incentive the Oxford Health contract might have given him to delay in making referrals. The issue of referrals was a leitmotif throughout the trial. Mrs. Verdicchio claimed that she had to “beg” for referrals and Morrow opined that Ricca’s failure to make referrals necessary to get to the bottom of Stephen’s condition was a violation of the appropriate medical standard. Ricca’s counsel stated in his opening: “[A]nytime that a referral was indicated, without hesitation, Dr. Ricca gave a referral and why wouldn’t he?” Ricca thus opened the door for the trial court to allow the relatively brief inquiry into financial incentives under the particular circumstances of this case. Ricca has also challenged three statements made by plaintiffs’ counsel during summation. Each of those statements was improper and the trial court immediately identified each as such. The court then instructed the jury regarding the improper statements, declaring that they should not be considered during the deliberations on the case. There is no reason to believe that the jury disregarded those instructions. Nor can it be concluded that the substance of those brief statements could have affected the outcome of this lengthy trial. There is also disagreement with Ricca’s contention, adopted by the Appellate Division, that plaintiffs’ failure to prove which of Stephen’s damages were attributable to his pre-existing disease and which could be linked to any increased risk to which Ricca exposed him was fatal to their case. That holding misconceives the law of damage apportionment in these circumstances. As the trial court properly instructed the jury, once plaintiffs established by a reasonable degree of medical probability that Ricca’s deviation increased the risk to Stephen and that that increased risk was a substantial factor in bringing about the harm that ultimately ensued, it fell to Ricca to establish that the damages could be reasonably apportioned and what those apportioned damages were. Except for Rubin’s conclusory statements that Stephen’s “ultimate outcome” would have been no different had his cancer been diagnosed in January, and his “care and treatment” would have been the same had he been diagnosed in May, the defense made no effort to show that what befell Stephen reasonably could be apportioned or to offer an apportionment scheme. Ricca’s failure to present proof to apportion damages entitled the jury to hold him 100 percent liable for Stephen’s losses. Ricca’s suggestion that plaintiffs bore the burden of proof on that issue, and that they failed to sustain it, is wide of the mark. Held: Plaintiffs presented evidence to satisfy the increased-risk and substantial-factor standards of Evers and its progeny. They were not required to prove the state of Stephen’s cancer at the time of Ricca’s deviation to establish their case. Nor were they required to provide statistical probabilities of survival, although they did so. Ricca’s failure to properly examine or refer Stephen for tests caused the evidential uncertainty that cannot now enure to his benefit. Neither were plaintiffs required to prove which of their specific damages were allocable to Ricca. That was his burden. Reversed and remanded for reinstatement of the verdict. Chief Justice Poritz and Justices Zazzali and Albin join in Justice Long‘s opinion. Justice Wallace did not participate. LaVecchia, J., dissenting, disagrees with the conclusion that plaintiffs met their proof requirements under the two-pronged substantial-factor test for causation. She says plaintiffs failed to establish the causation requirements for this claim at the time when their proofs must be judged. She notes that Dr. Morrow, plaintiffs’ only expert and a family practitioner, not an oncologist, testified that Ricca should have examined further Stephen’s extremities in January 1994. He further testified that he did not know within a reasonable degree of medical probability when Stephen’s cancer had metastasized. He stated with confidence though that the mass in Stephen’s thigh was present in January 1994. In cross-examination he estimated that Stephen probably first developed the cancer in the fall of 1993. He opined that if the cancer had not metastasized by January 1994 then Stephen had an 85 percent chance of survival over a five-year period and if the metastasized cancer had been diagnosed in May 1994, then he would have had a 20 percent to 30 percent chance of survival over a five-year period. She notes that at the conclusion of plaintiffs’ case, defendant moved for an involuntary dismissal of the wrongful death and survivorship claims. He noted that the cause of death was metastatic lung cancer that had been diagnosed in July 1994, and was extensive at that time. The earliest alleged negligence by defendant occurred at the end of January 1994. Defendant asserted that plaintiffs did not produce expert testimony to establish that Stephen did not have metastatic lung cancer in January or February 1994 in their case in chief. There was no opinion offered on his chance of survival if there was evidence of cancer in his lungs at that time. Nor was there any expert testimony that the hospitalizations, operative procedures, and pain and suffering would not have occurred if a diagnosis had been made earlier. Importantly, the court did not rule on defendant’s motion at that time notwithstanding that defendant argued, correctly, that he was entitled to have the court rule on the basis of plaintiffs’ proofs exclusively. The court reserved. She says that reservation of judgment was inappropriate. Rule 4:37-2 does not authorize a reservation of judgment. The court either should have granted or denied defendant’s motion for judgment at the close of plaintiffs’ case. In her view, had the proofs been evaluated timely and properly, i.e., as limited exclusively to that which plaintiffs had submitted, the case should have been dismissed. Plaintiffs had not submitted any expert testimony to establish Stephen’s survival rate if he had metastatic cancer in January 1994. They had compared only survival rates of nonmetastatic cancer as of January 1994 with metastatic cancer present in May 1994. Even were one to assume that testimony could be relied on, one still must assess whether Morrow’s testimony established the requisite link between the alleged negligent act by Ricca and the alleged injury. The trial court found that such a connection was not proved, and the Appellate Division agreed. She says Morrow’s testimony failed to establish an increased risk of harm that satisfied the “causal connection” requirement. She says that even if it were assumed that the requisite causal connection was established, she cannot agree that this verdict should stand. Defendant was thrust in the unenviable position of refuting a case on proximate causation before the trial court had ruled on his motion contending that a prima facia case had not been made. That choice held significant consequences for trial strategy on the apportionment of damages. A defendant in an increased-risk case has the burden of showing that damages can be apportioned and how that apportionment should occur. That task should not be required of a defendant before he has received the benefit of a decision on a motion for judgment at the close of a plaintiff’s case when such motion has been made. She says there is inherent difficulty in defending against an increased-risk case. For Ricca, that difficulty was exacerbated by uncertainty over whether plaintiffs had succeeded in establishing a prima facia case of causation. Ricca apparently chose not to run the risk of presenting an inconsistent trial strategy, claiming on the one hand that he did not commit medical malpractice that increased Stephen’s harm from a pre-existing condition and, at the same time, stating that although negligent, he is liable only for a portion of Stephen’s damages. In her judgment, the trial court’s failure to rule on defendant’s involuntary dismissal application deprived defendant of a fair trial concerning damages. She says that even if reasonable minds could disagree over whether plaintiffs should have been found to have satisfied the evidential requirements essential for overcoming defendant’s motion for involuntary dismissal, he was entitled to a ruling on that motion in order to know that. Moreover, defendant claims that numerous other errors also plague this record, none of which was addressed by the Appellate Division. To the extent the Court is not swayed by the significance of those trial rulings, she suggests that it misperceives their individual and cumulative prejudicial effect. She says defendant is entitled minimally to a new trial on damages. Justice Verniero joins in this opinion. — Digested by Judith Nallin [The slip opinion, including the dissent, is 64 pages long.] For appellants/cross respondents — Philip G. Auerbach (Auerbach & Ryan). For respondents/cross appellants — Richard A. Grossman (Grossman, Kruttschnitt, Heavey & Jacob; Grossman and Thomas J. Heavey on the briefs).

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.