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DOCKET NO. A-5491-08T1

JOSEPH CARINO, as Administrator

of the Estate of GRACE CARINO,
deceased, and JOSEPH CARINO,





Argued May 26, 2010 - Decided August 30, 2010

Before Judges Cuff, Miniman and Waugh.

On appeal from Superior Court of New Jersey, Law

Division, Morris County, Docket No. L-0028-07.

Mitchell J. Makowicz, Jr., argued the cause for

appellant (Blume, Goldfaden, Berkowitz, Donnelly,
Fried & Forte, attorneys; Mr. Makowicz, on the brief).

Neil Reiseman argued the cause for respondent

(Reiseman, Rosenberg & Pfund, PC, attorneys; Mr.
Reiseman, of counsel; Pamela C. Castillo, on the

Joseph Carino, individually and as the executor of the Estate of his wife

Grace Carino,1 appeals the dismissal of his complaint alleging medical

malpractice against defendant Christopher Muenzen, M.D., following a jury

verdict of no cause of action. We affirm.


We discern the following factual and procedural history from the



On the evening of January 1, 2005, Grace experienced a severe

headache. The pain was so intense that she asked Joseph to call 9-1-1,

which he did immediately. The emergency medical services (EMS) unit

arrived within five to ten minutes. An EMS worker checked Grace's vital

signs, which were normal. She had no complaints of dizziness or nausea.

Grace did not go to the hospital and apologized for having called 9-1-1,

telling the EMS worker that everything was "fine."

The next day, January 2, Grace complained that her headache would

not go away. She decided to seek medical treatment. On January 3, 2005,

she drove herself to see Muenzen, an internist, whom she had been seeing

since November 2004. She had a history of spinal stenosis, a fairly

significant form of arthritis.

Grace told a nurse at Muenzen's office about the headache she had on

January 1. She initially described it as a sudden and severe headache, all

Because Joseph and his late wife share the same last name, we refer to
them by their first names for the sake of convenience.

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over her head. She had no vomiting, nausea, fever or photophobia. Based

on the absence of those symptoms, Muenzen concluded that it was nearly

impossible for there to be bleeding in her brain.

When examined by Muenzen, Grace told him that the headache she

experienced on January 1 began more mildly, in the front of her head.

Muenzen explained at trial that catastrophic headaches start out suddenly,

"as if somebody came and whacked you on the back of the head with a

baseball bat." According to Muenzen, the fact that Grace's headache started

out slowly drew his thinking away from a catastrophic type of headache. The

length of time she had the headache was also significant because, with

intracranial bleeding, a headache would not go away in fifteen or twenty

minutes. Consequently, in Muenzen's mind, Grace's headache was not

indicative of a subarachnoid hemorrhage.

Muenzen performed a physical exam, focusing on Grace's neck. She

had normal flexion and extension (up and down motion), but decreased

range of lateral (rotational) motion. According to Muenzen, the physical

exam excluded any meningeal problem, anything dealing with the brain that

might affect the tissues that surround the brain and go down into the spinal

cord. Grace's decreased range of lateral or rotational motion suggested a

"process" in her neck, such as a disc, a bone, or nerve problem.

Muenzen prescribed Mobic, an anti-inflammatory sometimes used to

treat migraine headaches. Nausea is a known side-effect of Mobic. He also

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ordered lab work to rule out conditions such as Lyme disease and temporal


Based on Grace's history and his examination, Muenzen made a

primary differential diagnosis of migraine. While he had not entirely ruled

out a subarachnoid hemorrhage, Muenzen did not discuss that possibility

with Grace because it was not "[his] habit to scare somebody with that

possibility unless you feel certain that that's what you're dealing with, or

unless the next procedure would be to deal with that."

Although low on his differential diagnosis list, Muenzen nevertheless

wanted to rule out a subarachnoid hemorrhage because it is potentially fatal.

Consequently, he sent Grace for a CAT scan, which he ordered be done

“stat” (immediately). Grace drove to Morristown Memorial Hospital, where

the CAT scan was performed that day. The CAT scan was negative.

In ruling out a subarachnoid hemorrhage, Muenzen relied on the

negative CAT scan, the results of Grace's physical exam, and her history,

specifically the fact that her severe headache was preceded by a frontal

headache, which was indicative of "a much more benign origin of headache."

He did not discuss with Grace the fact that a negative CAT scan is only

between ninety-three and ninety-five percent accurate in excluding

subarachnoid hemorrhages, nor did he inform her that a spinal tap, a

procedure during which spinal fluid is removed from the spinal canal for the

purpose of diagnostic testing, would be definitive.

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On January 5, Grace still did not feel well. She went to see Muenzen

again, and was accompanied by Joseph. She presented with a cough, back

pain, ear pain, nausea, photophobia, and generalized body aches. According

to Muenzen, the new symptoms drew him further away from a subarachnoid

hemorrhage. He had never seen a cough associated with one. And,

although nausea and photophobia can be associated with a subarachnoid

hemorrhage, both are common with migraines. He did not associate them

with a subarachnoid hemorrhage because Grace's headaches were not

getting worse, her neck problem was a decreased range of lateral motion

rather than flexion and extension, and she was not vomiting.

Muenzen's differential diagnosis on January 5 remained a migraine. He

believed the diagnosis was confirmed because Grace's headache was

accompanied by mild nausea and mild photosensitivity and also increased

with activity, which he described as classic migraine findings.

According to Joseph, Muenzen never mentioned the possibility of

bleeding in the brain, a subarachnoid hemorrhage, or the potential of an

emergent, life threatening condition. Muenzen did not suggest that Grace go

to the emergency room.

Muenzen recommended that Grace follow up with a neurologist, but

did not state that there was an urgent need for it. He gave Grace and Joseph

a list of four neurologists. Joseph called them right away, but could not get

Grace an appointment until January 13. Neither Joseph nor Grace informed

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Muenzen that they were having trouble getting an appointment, or that the

earliest appointment they could get was on January 13.

Muenzen also ordered MRIs of the head and neck. Grace drove to get

the MRIs on January 6. The MRI of the neck was performed that day. It

revealed a bulging disc at C4 and C5, as well as significant arthritis in the

neck. Muenzen called Grace that day with the results. According to

Muenzen, those findings were consistent with her neck pain on lateral or

rotational motion.

Muenzen also told Grace that she should go back for the second MRI.

On January 7, Grace drove herself to get the MRI of her head. The second

MRI was negative, as Muenzen advised Grace by telephone.

Muenzen called Grace on Saturday, January 8, to see how she was

doing. She reported that she still had a mild headache. He did not ask her if

she had seen or made an appointment with a neurologist.

On the morning of January 13, prior to her appointment with the

neurologist, Grace lost consciousness and fell face forward to the ground.

She was taken to Morristown Memorial Hospital. Upon arrival, she was

unresponsive and in a coma. Both a CAT scan and a CT angiogram were


According to Felix Garcia Perez, M.D., the Director of Trauma and

Critical Care Services at Morristown Memorial, the CAT scan showed that

Grace had two different types of bleeds in the brain; a subdural hematoma

and a subarachnoid hemorrhage. He concluded that both bleeds could have

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been the result of the fall, but added that subarachnoid hemorrhages could

occur without trauma. The CAT scan also revealed "that there was pressure

over the right side of the brain pushing [against] the left side of the brain,

which [is] call[ed] a shift." A CT angiogram performed to determine if there

was an aneurysm was inconclusive.

A neurosurgeon performed brain surgery to release the pressure on

the brain by removing the subdural hematoma. Grace was admitted to the

Neuro Special Care Unit following the surgery. However, her post-operative

examinations were consistent with brain death. She was pronounced dead

on January 14.

Flores Alfonso, M.D., the pathologist at Morristown Memorial,

performed an autopsy. It revealed a ruptured Berry aneurysm, which is a

"dilatation" of one of the vessels in the bottom of the brain. The

subarachnoid hemorrhage, which was at the base of the brain, resulted from

the ruptured aneurysm. The autopsy also showed a subdural hematoma

resulting from Grace's fall.

According to Alfonso, the chain of events leading to Grace's death

appeared to have been an acute rupture of the Berry aneurysm, which

caused the subarachnoid hemorrhage, leading to a loss of consciousness and

the fall, with secondary trauma to the head resulting in a subdural

hematoma. The cause of death was determined to be foramen magnum

herniation, which is a herniation of the hole at the base of the brain through

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which the spinal cord passes, caused by the intracranial bleeding and related


Because Alfonso was not concerned at the time of the autopsy about

whether there had been bleeding from the aneurysm prior to Grace's fall, he

did not perform tests to identify prior bleeding. However, he did not see any

signs of prior bleeding.


In January 2007, Joseph filed a medical malpractice action against

Muenzen, alleging that he had deviated from accepted standards of medical

care in treating Grace. The complaint also alleged that Muenzen failed to

provide Grace "with an opportunity of an informed consent." Muenzen filed

an answer in March 2007, denying Joseph's allegations of malpractice.

The jury trial started on May 14, 2009. During jury selection, Joseph's

counsel began using a laptop computer to access the internet, intending to

obtain information on prospective jurors. Defense counsel objected and the

following exchange took place:

THE COURT: Are you Googling these [potential


[PLAINTIFF'S COUNSEL]: Your Honor, there's no code

law that says I'm not allowed to do that. I -- any
courtroom –

THE COURT: Is that what you're doing?

[PLAINTIFF'S COUNSEL]: I'm getting information on

jurors -- we've done it all the time, everyone does it.
It's not unusual. It's not. There's no rule, no case or
any suggestion in any case that says --

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THE COURT: No, no, here is the rule. The rule is it's
my courtroom and I control it.

[PLAINTIFF'S COUNSEL]: I understand.

THE COURT: I believe in a fair and even playing field.

I believe that everyone should have an equal
opportunity. Now, with that said there was no
advance indication that you would be using it. The
only reason you're doing that is because we happen
to have a [Wi-Fi] connection in this courtroom at this
point which allows you to have wireless internet

[PLAINTIFF'S COUNSEL]: Correct, Judge.

THE COURT: And that is fine provided there was a

notice. There is no notice. Therefore, you have an
inherent advantage regarding the jury selection
process, which I don't particularly feel is appropriate.
So, therefore, my ruling is close the laptop for the
jury selection process. You want to -- I can't control
what goes on outside of this courtroom, but I can
control what goes on inside the courtroom.

The judge also considered Joseph's request that he be permitted to

argue his "theory" of "lack of informed consent" to the jury. The judge

reserved decision, but instructed counsel to refrain from making any

reference to that theory in his opening statement.

Joseph testified to the facts outlined above. He presented Paul

Lewinter, M.D., a board certified internist, as an expert in the field of internal

medicine. Lewinter testified to his opinion that Grace's headache on January

1 qualified as a neurological emergency and that Muenzen should have sent

her to the emergency room the first time he saw her. He opined that

Muenzen deviated from the accepted standard of medical care by not

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recognizing Grace's condition as "a neurological life threatening emergency

and sending [her] to the hospital immediately and getting a neurologist and

getting it handled." According to Lewinter, the "only appropriate way to

handle a neurological life threatening emergency is emergently," and "[i]n

this case no matter what the CAT scan showed this patient had to go to the

emergency room, period."

Lewinter also testified that, although Muenzen appropriately ordered

the CAT scan "stat" in order to rule out a subarachnoid hemorrhage, CAT

scans are only between ninety-three and ninety-five percent accurate.

Consequently, the negative CAT scan did not definitively rule out a

subarachnoid hemorrhage. As a result, Lewinter's opinion was that Muenzen

deviated from the accepted standard of medical care by assuming that the

negative CAT scan from January 3 ruled out a subarachnoid hemorrhage. He

testified that a spinal tap is the definitive test to rule out subarachnoid

hemorrhage and that Muenzen should have sent Grace to the emergency

room so that a neurologist could determine whether one was necessary.

Lewinter further testified that Muenzen's deviations from the accepted

standard of medical care were a significant factor in Grace's death.2

When Joseph's counsel sought to elicit testimony from Lewinter

regarding treatments available for a subarachnoid hemorrhage, Muenzen's

counsel objected, arguing that Lewinter had testified at deposition that he

Joseph also presented a damages expert. Because damages are not at
issue in this appeal, we do not summarize his testimony.

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was not qualified to form an opinion with respect to treatment because he

was not a neurologist or neurosurgeon.

The following exchange took place at Lewinter's deposition:

Q: Let's assume, theoretically, that on January the

6th they were able to . . . determine that Mrs. Carino
had a subarachnoid hemorrhage in the Circle of

A: Yes.

Q: And the treatment would be, in order to try to

solve the problem, correct it, would be neurosurgery;
is that correct?

A: Depends how you define "neurosurgery." It

can be open neurosurgery or the passage of what
are called coils to thrombus the aneurysm. That is
done through the femoral artery. I guess you would
call that "neurosurgery," but it is not open
craniotomy neurosurgery.

Q: Is either one of them an appropriate modality

of treatment depending on what the neurosurgeon

A: I'll have to punt on that. I am not a


Q: What is the morbidity or mortality in a 66-year

old woman, such as Ms. Carino, given her physical
state and well-being in January of 2005?

A: I don't know what the literature says, but in my

experience it's been a hundred percent successful. I
am sure that is not the general experience, but I
don't know what the literature says. You have to
consult a neurologist.

Q: You don't have an opinion in that regard?

A: That is correct.

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After hearing the deposition testimony, the trial judge sustained defense

counsel's objection, explaining that

[T]his ruling must rest on the witness's own

testimony that . . . it's beyond his experience. He
said it in the deposition. He said he could not
express an opinion on morbidity. He could not
express an opinion on what approach one way or the
other would be the way to go. He does know the
approaches, that is clear.

However, prior to the objection, Lewinter had testified that proper

treatments for a subarachnoid hemorrhage were available at Morristown

Memorial in January 2005.

At the close of Joseph's case, Muenzen moved to dismiss Joseph's claim

of lack of informed consent. See R. 4:37-2(b). In granting the motion, the

judge explained:

I believe that the plaintiff's primary case is

inherently contradicted by the informed consent
theory. Because the informed consent theory
assumes that there are alternative theories of
treatment which are valid.


This case is far different than an informed

decision case, and the proofs have [been presented]
in a way entirely inconsistent with an informed
decision case. And I can understand why. . . . I
believe that the proofs submitted here, when viewed
in a light most favorable to the plaintiff do not
demonstrate the elements necessary . . . for the
claim of informed consent to go forward.

Muenzen testified with respect to his treatment of Grace. Gary R.

Weine, M.D., a board certified internist, testified for Muenzen as an expert in

the field of internal medicine. He concluded that Muenzen's treatment of

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Grace did not deviate from accepted standards of medical care. Based on

his review of the medical records, he concluded that there was nothing that

would make the level of suspicion very high for intracranial bleeding, such as

a subarachnoid hemorrhage. He observed that, although Muenzen's notes

stated that there was a severe headache, it was preceded by a mild frontal

headache. In addition, patients with bleeding usually have nausea and

vomiting, and Grace had neither. Nevertheless, Muenzen sent Grace for a

CAT scan "stat" to rule out bleeding or a mass.

In light of Grace's history, Muenzen's findings, and the negative CAT

scan, Weine concluded that the standard of care did not require Muenzen to

send Grace for a lumbar puncture to rule out a bleed, or to refer her to a

neurologist for emergent care. He testified that it is rare for physicians to

seek a lumbar puncture, which he described as an unpleasant procedure

with increased risks for an individual with spinal stenosis, to rule out bleeding

after a negative CAT scan. Consequently, he concluded that Muenzen met or

exceeded the standard of medical care.

Weine also concluded that Muenzen did not deviate from the accepted

standard of medical care on January 5. He also opined that an emergent

referral was not required on that date because the nature of the headache

had changed, and appeared to be musculoskeletal and cervical in origin. He

also testified that Grace's presentation was not consistent with a

subarachnoid hemorrhage. She had no focal neurological signs on January 3

and, when she returned on January 5, there was nothing that "would cause a

13 A-5491-08T1
reasonable internist to raise their index of suspicion as to a bleed." In fact,

Weine testified that a reasonable physician's suspicion of a bleed would have

been very low to begin with because Grace's initial headache was very brief

and there were no focal neurological findings. He testified that "a

reasonable physician would have eliminated a bleed as causation for

[Grace's] headaches."

Weine further testified that the history of all of Grace's headaches

would "almost completely eliminate" the diagnosis of a bleed, because a

patient with subarachnoid hemorrhage usually has a severe headache that

persists "and the second, or maybe the third, event is a massive bleed."

Finally, Weine explained that a physician can miss the proper diagnosis

or make the wrong diagnosis and still meet the appropriate standard of

medical care.

At the close of the case, Joseph requested the judge to charge

informed consent. The request was denied. The judge explained:

My ruling is that this is not an informed consent

case. It never was an informed consent case. That
the proofs are completely inconsistent with an
informed consent case. That your theory of this case
is a failure to diagnose, . . . leading directly as a
substantial factor in her death. That is your case.
And the bottom line [is that] an informed consent
case requires options, treatment options. . . . What
you're trying to take is some kind of ethical thing,
which I don't understand.

On May 27, 2009, a unanimous jury returned a verdict of no cause of

action, finding that Muenzen did not deviate from the accepted standard of

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medical care. On the same date, the trial judge entered an order of


This appeal followed.


On appeal, Joseph argues that the trial judge erred in (1) refusing to

allow him to present a claim for lack of informed consent to the jury; (2)

precluding his attorney from accessing the internet during jury selection; (3)

precluding testimony by his expert concerning the available treatments for

subarachnoid hemorrhage and their likely outcomes; and (4) giving a flawed

charge concerning negligence and causation. He also argues that, even if

none of those errors warrant reversal when considered alone, they do so

when considered cumulatively. For the reasons set forth below, we affirm

the judgment on appeal.


Joseph's first argument on appeal is that the trial judge erred in

precluding him from presenting his cause of action for lack of informed

consent to the jury. The gist of his argument is that Muenzen was obligated

to inform Grace that a subarachnoid hemorrhage was a possible diagnosis,

that the negative CAT scan was only a ninety-three to ninety-five percent

accurate diagnostic test, and that a spinal tap would be definitive, allowing

Grace to decide whether she wished to undergo that procedure after

Muenzen explained the relative risks. Muenzen responds that the judge

correctly refused to allow the claim to go to the jury, arguing that the lack of

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informed consent theory was inconsistent with Lewinter's opinion that the

standard of care required that Grace be referred to the emergency room

immediately so that a neurologist could determine whether a spinal tap was


The New Jersey Supreme Court has recognized that a patient has three

avenues of relief against a physician: "(1) deviation from the standard of

care (medical malpractice); (2) lack of informed consent; and (3) battery."

Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 545 (2002).

"Although each cause of action is based on different theoretical

underpinnings, 'it is now clear that deviation from the standard of care and

failure to obtain informed consent are simply sub-groups of a broad claim of

medical negligence.'" Ibid. (quoting Teilhaber v. Greene, 320 N.J. Super. 453,

463 (App. Div. 1999)).

"A claim based on the doctrine of informed consent is predicated on

the patient's right to self-determination." Canesi v. Wilson, 158 N.J. 490,

503-04 (1999). "Choosing among medically reasonable treatment

alternatives is a shared responsibility of physicians and patients," and

physicians "have a duty to evaluate the relevant information and disclose all

courses of treatment that are medically reasonable under the

circumstances." Matthies v. Mastromonaco, 160 N.J. 26, 34 (1999). The

doctrine of informed consent obligates a doctor to disclose material risks

inherent in a procedure or course of treatment so that the patient can make

an informed decision. Id. at 36.

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The informed consent doctrine does not apply where the claim is that

the physician failed to diagnose the patient's condition. See Farina v. Kraus,

333 N.J. Super. 165, 178 (App. Div. 1999) (failure to perform sufficient

diagnostic testing), certif. denied, 164 N.J. 560 (2000); Eagel v. Newman, 325

N.J. Super. 467, 474-75 (App. Div. 1999) (failure to take adequate medical

history). The doctrine also does not apply when a physician makes an

improper diagnosis. Linquito v. Siegel, 370 N.J. Super. 21, 33 (App. Div.),

certif. denied, 182 N.J. 143 (2004).

In Linquito, the defendant urologist had failed to diagnose a recurrence

of bladder cancer. Id. at 25. The plaintiff's expert testified that he deviated

from the accepted standard of care by, among other things, not taking a

sample of tissue for biopsy during a cystoscopic examination. Id. at 30-31.

The defendant's expert testified that the standard of care did not require

that diagnostic test. Id. at 31. Although the jury found no deviation from the

standard of care, it found that "defendant 'fail[ed] to inform Arthur Linquito

of all the information that a reasonable person in the plaintiff's position

would expect a doctor to disclose so that Arthur Linquito might make an

informed decision about other diagnostic procedures and a course of

treatment.'" Id. at 32.

In reversing, we wrote:

We have previously held that the informed

consent theory of liability does not apply where the
patient's claim is that the physician erred in
diagnosing the patient's condition, either through an
alleged failure to obtain an adequate medical history
or through an alleged failure to perform a sufficient

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number or type of diagnostic tests. Farina v. Kraus,
333 N.J. Super. 165, 178-79 (App. Div. 1999) (holding
that alleged failure to perform sufficient diagnostic
testing); Eagel v. Newman, 325 N.J. Super. 467, 474-
75 (App. Div. 1999) (alleged failure to take adequate
medical history or to attend to the matter, Judge
Pressler stating that "the informed-consent basis of
malpractice, as opposed to deviation from the
applicable standard of care, rests not upon the
physician having erred in diagnosis or administration
of treatment but rather in the failure to have
provided the patient with adequate
information regarding the risks of a given treatment
or with adequate information regarding the
availability of alternative treatments and the
comparative risks of each"). We adhere to those
cases. Compare Gilmartin v. Weinreb, 324 N.J.
Super. 367, 390 (App. Div. 1999) (citing out-of-state
cases holding that informed consent doctrine does
not require doctor to advise of alternative diagnoses,
but noting it might apply where a specific diagnosis
was considered possible by physician but not

Farina concerned whether a urologist

negligently diagnosed and treated bladder cancer. In
holding that the doctrine of "informed consent" was
not applicable, Judge King wrote:

This case before us is not about options

for a course of treatment or for surgery
but about suitable diagnostic testing. If
the doctor wrongly failed to use the
cytology test and this led to a diagnostic
mistake which adversely affected the
outcome, the doctor can be liable. If the
standard of reasonable care did not
require using the cytology test to aid a
diagnosis, then there is no liability here.
There is either a deviation, or there is
not. A malpractice defendant does not
have a duty to discuss every possible
non-invasive risk-free diagnostic or
laboratory test with a patient and secure
a consent to or waiver thereof. The
doctor must, of course, use reasonable

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care and skill in choosing the diagnostic
tests and interpreting the results. If he
does not, he is vulnerable.

[Farina, supra, 333 N.J. Super. at 179-80.]

In Farina, we also concluded that the trial court's
submission of the case on a proper theory of liability
(negligent diagnosis/treatment), and an improper
theory of liability (informed consent), had
"irremediably tainted the jury's special verdicts" for
plaintiff on the informed consent theory only. Id. at
177-78, 180 (quoting Ahn v. Kim, 281 N.J. Super. 511,
534 (App. Div. 1995), aff'd, 145 N.J. 423 (1996)). We
found the verdict rejecting the negligent
diagnosis/treatment theory "was not trustworthy
where the balance of the verdict, on the 'informed
consent' theory, [suggested that the jury
determined] the defendant somehow failed his
patient." Id. at 180. We expressed concern that the
jury's answers to the questions on the verdict sheet,
including the percentage apportionment of damages
answers, "smack[ed] of a possible compromise
verdict." Ibid.

[Id. at 34-36.]

As we did in Linquito, we decline to extend the informed consent cause of

action to situations in which a doctor decides not to pursue a course of

diagnostic testing, especially when there is a viable claim that the defendant

doctor deviated from the standard of care. See id. at 34-35. Here, as in

Linquito, there was a viable, albeit unsuccessful, claim that Muenzen

deviated from the standard of care.

Consequently, we hold that Joseph was not entitled to have his

informed consent claim presented to the jury, and affirm the trial judge's

decision not to do so.

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Joseph contends that the trial judge abused his discretion during jury

selection by precluding his attorney from accessing the internet to obtain

information on prospective jurors. He argues that the trial judge deprived

him of "the opportunity to learn about potential jurors . . . one of the most

fundamental rights of litigation." Muenzen counters by arguing that the

judge did not abuse his discretion.

The purpose of voir dire is to ensure that a fair and impartial jury is

empanelled. State v. Williams, 93 N.J. 39, 61 (1983). "'In the absence of a

statute or court rule to the contrary, as long as the selection procedure

results in a fair and impartial jury, the manner in which a jury is to be

selected is properly within the trial court's sound discretion.'" State v.

Howard, 192 N.J. Super. 571, 576 (App. Div. 1983) (quoting Turner v.

Virginia, 273 S.E.2d 36, 41 (1980), cert. denied, 451 U.S. 1011, 101 S. Ct.

2347, 68 L. Ed. 2d 863 (1981)). A reviewing court must generally accord

great deference to the trial judge, who has broad discretion in conducting

voir dire. State v. Koedatich, 112 N.J. 225, 274 (1988), cert. denied, 488 U.S.

1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989); see also State v. Manley, 54

N.J. 259, 269 (1969) (explaining that New Jersey law vests trial courts with

broad discretion in conducting voir dire).

In addition, as we held in State v. Cusumano, 369 N.J. Super. 305, 311

(App. Div.), certif. denied, 181 N.J. 546 (2004):

"A trial judge has the ultimate responsibility to

control the trial in the courtroom and is given wide

20 A-5491-08T1
discretion to do so." Horn v. Village Supermarkets,
Inc., 260 N.J. Super. 165, 175 (App. Div. 1992), certif.
denied, 133 N.J. 435 (1993). The exercise of this
authority, however, is circumscribed by the judge's
responsibility to act reasonably and within
constitutional bounds. Ryslik v. Krass, 279 N.J.
Super. 293, 297-98 (App. Div. 1995).

In making his ruling, the trial judge cited no authority for his

requirement that trial counsel must notify an adversary and the court in

advance of using internet access during jury selection or any other part of a

trial. The issue is not addressed in the Rules of Court.

We note, however, that on April 25, 2008, the trial court administrator

for the Morris/Sussex Vicinage issued a press release announcing that

"wireless internet access" had become available throughout the Morris

County Courthouse to "maximize productivity for attorneys" and other court

users. The press release quotes the assignment judge as stating that the

"courthouse enhancement allows court users" to "access online databases."

There is nothing in the press release, or elsewhere as far as we can

determine, that requires attorneys to notify the court or opposing counsel in

advance of their intention to take advantage of the internet access made

available by the Judiciary.

Despite the deference we normally show a judge's discretion in

controlling the courtroom, we are constrained in this case to conclude that

the judge acted unreasonably in preventing use of the internet by Joseph's

counsel. There was no suggestion that counsel's use of the computer was in

any way disruptive. That he had the foresight to bring his laptop computer

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to court, and defense counsel did not, simply cannot serve as a basis for

judicial intervention in the name of "fairness" or maintaining "a level playing

field." The "playing field" was, in fact, already "level" because internet

access was open to both counsel, even if only one of them chose to utilize it.

Nevertheless, we have concluded that Joseph has not demonstrated

any prejudice resulting from the trial court's ruling. He has not pointed to a

single juror who was unqualified or as to whom he claims he would have

exercised a peremptory challenge, even though he has subsequently had the

opportunity to perform an internet search concerning each juror. Indeed,

inasmuch as jury selection took two days, Joseph's counsel could have

researched the prospective juror lists overnight or during breaks, and

certainly could have done so before the testimonial portion of the trial

started on the third day.


Joseph also argues that the trial judge erred in barring his expert,

Lewinter, from testifying about treatments for subarachnoid hemorrhages

and the probability of success of such treatments. While conceding that

Lewinter was an internist and not a neurosurgeon, Joseph argues that he

should have been permitted to testify based on "his knowledge and

experience with patients who have been treated for the condition, as based

upon his education, training, knowledge and experience as a board-certified

internist in practice for nearly fifty years." Muenzen responds that the trial

judge's decision was correct because Lewinter himself had testified at

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deposition that he was not qualified to render an opinion on those issues

because he was not a neurologist or neurosurgeon. In addition, Muenzen

argues that Joseph suffered no prejudice, even if the testimony should have

been allowed, because it was addressed to the issue of causation and the

jury did not reach that issue, having concluded that Muenzen did not deviate

from accepted standards of medical care.

The admissibility of expert testimony lies in the sound discretion of the

trial court. Carey v. Lovett, 132 N.J. 44, 64 (1993); Muise v. GPU, Inc., 371

N.J. Super. 13, 58 (App. Div. 2004). Our scope of review of a trial judge's

evidential rulings requires that we grant substantial deference to the judge's

exercise of that discretion. DeVito v. Sheeran, 165 N.J. 167, 198 (2000).

Rulings on evidence will not provide a basis for reversal unless they reflect a

clear abuse of that discretion. Benevenga v. Digregorio, 325 N.J. Super. 27,

32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000).

The standard for admissibility of expert testimony is set forth in N.J.R.E.


If scientific, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training,
or education may testify thereto in the form of an
opinion or otherwise.

In State v. Kelly, 97 N.J. 178, 208 (1984), the Supreme Court held that one of

the rule's basic requirements for the admission of expert testimony is "the

witness must have sufficient expertise to offer the intended testimony."

Expert testimony is not permissible "'if it appears the witness is not in

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possession of such facts as will enable him to express a reasonably accurate

conclusion as distinguished from a mere guess or conjecture.'" Vuocolo v.

Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 299 (App. Div.) (quoting

Clearwater Corp. v. City of Lincoln, 277 N.W.2d 236, 241 (Neb. 1979)), certif.

denied, 122 N.J. 333 (1990).

Before the objection, Lewinter had testified that there were treatments

available for a subarachnoid hemorrhage at the time of Grace's illness, that

there was "a very good neurological unit" at Morristown Memorial, and that

he would go there if he "had that problem." The objection came when

Joseph's counsel started to go into the specifics of treatment. Inasmuch as

Lewinter himself testified at his deposition that he was not a neurosurgeon

and not qualified to testify about modalities of treatment, we conclude that

the trial judge did not abuse his discretion in precluding the testimony. We

will not disturb that ruling on appeal. See Carey, supra, 132 N.J. at 64; Little

Egg Harbor Twp. v. Bonsangue, 316 N.J. Super. 271, 278 (App. Div. 1998).

In any event, as Muenzen correctly argues, the precluded testimony

dealt with the issue of causation and proximate cause, rather than deviation

from accepted medical standards. Because the jury never reached causation

or proximate cause, any error would be harmless. R. 2:10-2.


Joseph's remaining arguments, that the trial judge gave an inadequate

charge and that his cumulative errors warrant a new trial, are without merit

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and do not warrant extended discussion in a written opinion. R. 2:11-3(e)(1)


With respect to the jury charge, we agree that the trial judge's charge

with respect to causation was flawed. However, although we are aware that

"negligence and causation generally intertwine," Ahn v. Kim, 145 N.J. 423,

434 (1996), we nevertheless conclude that the judge's charge with respect

to the issue of deviation from accepted standards of care was correct and

not infected by the problems with the remainder of the charge. Proof of a

deviation from the standard of care is a necessary element of a malpractice

case such as the one before us. Gonzalez v. Silver, 407 N.J. Super. 576, 586

(App. Div. 2009). Because the jury responded to the first question on the

verdict sheet by finding that Joseph had not proven that Muenzen deviated

from accepted standard of medical care, it necessarily did not reach the

issue of causation. Thus, the error with respect to the remainder of the

charge was harmless. R. 2:10-2.

Finally, although we have found that the trial judge should have

allowed Joseph's counsel to utilize his computer during jury selection and

that a part of the jury charge was flawed, we have found no error, whether

viewed individually or cumulatively, requiring a reversal of the jury's verdict,

which was fully supported by the evidence adduced at trial. See Biruk v.

Wilson, 50 N.J. 253, 262 (1967) ("[T]he cumulative effect of small errors may

be so great as to work prejudice.").


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