Koseoglu v. Wry, 431 N.J. Super. 140 (App. Div. 2013). This opinion by Judge Lihotz was issued in April but was approved for publication only today. It is a medical malpractice case, on cross-appeals from motions for judgment notwithstanding the verdict (“n.o.v.”) in favor of plaintiff. The panel ultimately denied all the motions and let the jury verdict stand. The standard of review of decisions on motions for judgments n.o.v.– whether “the evidence, together with the legitimate inferences therefrom, could sustain a judgment in … favor” of the party opposing the motion– made it difficult for either the appellant or the cross-appellant to succeed.
The opinion discussed at length the distinction between “but for” causation and the “substantial factor” standard of causation that was applicable in this context. Judge Lihotz also addressed issues involving the qualifications of experts and the sufficiency of expert testimony. As the panel noted, a decision that a witness is competent to testify as an expert will be reversed only upon “a clear abuse of discretion.” Here, plaintiffs’ experts were sufficiently qualified. As to the validity of the opinions of those experts, “[t]he jury alone determines whether and how much of an expert’s testimony to accept.” There was sufficient evidence for the jury to accept plaintiffs’ experts’ testimony.
Finally, Judge Lihotz turned to plaintiff’s cross-appeal, which addressed the allocation of damages. The jury found that defendant had proven that some portion of plaintiff’s damages would have occurred even absent defendant’s negligence, due to a pre-existing condition that plaintiff had, and the panel upheld that finding.
Judge Lihotz observed that the jury instructions and interrogatories were taken from Model Jury Charge (Civil) 5.50E, “Pre-Existing Condition- Increased Risk/Loss- Proximate Cause.” In a footnote in her discussion of the allocation issue, Judge Lihotz included an “observation” about the Model Charge. “[T]he Model Charge recites each element of plaintiff’s burden of proof, including a plaintiff’s burden to prove defendant deviated from the accepted standard of care, which increased the risk of harm posed by decedent’s pre-existing condition, and defendant’s negligent act constitutes a substantial factor in causing the harm. However, we cannot explain why the jury interrogatories separate these elements of a plaintiff’s case.”
The first two questions to the jury related to plaintiff’s burden of proof, whether defendant deviated from the standard of care and increased the risk of harm posed by plaintiff’s pre-existing condition. The third jury question, however, somewhat confusingly pivoted to an element of defendant’s proofs: whether defendant had shown that “some portion of the ultimate harm would have occurred anyway.” “More important, question four conflates defendant’s obligation with respect to apportionment of damages with plaintiff’s burden to prove defendant’s negligence was a substantial factor in the resultant harm. Although not an issue in this case, the jury interrogatories as drafted, and consequently as used by trial courts, seem problematic and likely to misdirect the jury.”
This comment about the Model Jury Charge may be the reason that this decision was, belatedly, approved for publication. The issues of the case itself seem relatively ordinary and fact-specific. A potential pitfall in a Model Charge, however, has implications for other cases, and deserves the full attention that the bench, the bar, and the public give to a published opinion.