NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0015-07T10015-07T1
KENIA ALVES,
Plaintiff-Appellant,
v.
PAUL H. ROSENBERG, M.D.,
Defendant-Respondent.
Telephonically Argued May 13, 2008 - Decided
Before Judges Parrillo, S.L. Reisner and Gilroy.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0705-04.
Peter Berge argued the cause for appellant (Bendit Weinstock, P.A., attorneys; Mr. Berge, Christine M. Tiritilli, and William L. Gold, on the briefs).
Richard A. Amdur argued the cause for respondent (Amdur, Maggs & Shor, P.C.; Mr. Amdur, of counsel and on the brief).
The opinion of the court was delivered by
PARRILLO, J.A.D.
In this medical malpractice action, plaintiff Kenia Alves appeals from a final judgment entered on a jury's no cause verdict in favor of defendant Paul H. Rosenberg, M.D. Because we find the trial court erred in allowing defense counsel to read extensive portions of the non-testifying defendant's deposition testimony into the record, we reverse.
By way of background, on December 3, 2001, plaintiff, a twenty-seven-year-old Brazilian citizen, consulted with defendant, a board-certified plastic surgeon, about laser hair removal in her pubic and lower abdominal areas. According to plaintiff, she informed defendant of her low tolerance for pain and of her keloid scar, after which defendant documented plaintiff's skin sensitivity in his records. After being assured that a topical gel would relieve any associated pain, plaintiff scheduled the procedure for the following day. She was given a cream to be applied prior to the procedure to numb the area that would be treated.
The next day, plaintiff signed a consent form indicating that she had "been informed that scarring, blistering, purpura, hypopigmentation or hyperpigmentation are possible risks and complications." During the ensuing procedure, plaintiff complained of pain several times and in response to her complaints, defendant blew cold air through a tube and lowered the laser's frequency.
Immediately after the procedure, plaintiff was still in pain and noticed "bubbles" on her skin. Defendant escorted her back to the procedure room where he administered additional "forced air cooling," and applied ice and aloe vera gel to the affected area. Plaintiff, however, continued to experience severe pain, so defendant administered a shot. Thereafter, she slept for about three hours at the office. When she awoke, defendant gave plaintiff a two-day supply of Toradol, a pain and anti-inflammatory medication, as well as aloe vera gel for the burns.
The pain persisted upon her return home. On a follow-up visit to defendant's office on December 6, defendant noted first-degree burns and dark circles. On a subsequent visit one week later, defendant noted plaintiff was "doing well. No more pain in bikini area. Spotty areas of hyper[-] and hypopigmentation, especially at periphery."
Plaintiff complained of pain for about two weeks after the procedure. During that time, she was unable to wear underwear or walk without discomfort. She consulted a dermatologist, Dr. Ira Guterman, who noted "scattered superficial crusting with pigmented" and "superficial laser burns." Guterman diagnosed plaintiff with first degree burns and prescribed Bactroban antibiotic ointment. At a follow-up visit on December 21, 2001, Guterman noted loss of pigmentation, but "no crusting" and that the "laser burns [are] much improved."
About two months after the procedure, plaintiff returned to work as a "go-go dancer." Although she was able to wear both one- and two-piece bikinis while dancing, she had modified her style of dress in other ways to hide her scars. For instance, she no longer wears bikinis "from Brazil" or low-cut jeans or blouses and wears make-up to cover-up the marks.
Plaintiff sued defendant in medical malpractice for injuries received during the hair removal procedure. She later sought a stay of the proceedings because of visa complications that delayed her return from Brazil. The denial of this motion resulted in the grant of defendant's motion for summary judgment based on plaintiff's failure to file an expert report within the discovery period. We reversed both orders and remanded the matter with instructions to conduct a case management conference and issue a case management order with a discovery end date. Alves v. Rosenberg, No. A-5574-02T5 (App. Div. April 19, 2006) (slip op. at 7-8).
Due largely to plaintiff's unavailability and defendant's background, the trial proceeded without live witnesses. All testimony was presented via either videotape or the reading of depositions. Thus, in addition to plaintiff's own de bene esse videotaped testimony, plaintiff also offered the videotaped deposition testimony of her expert, Dr. Richard Marfuggi, a board-certified plastic surgeon. Marfuggi opined that defendant deviated from the standard of care in his treatment of plaintiff in several ways, by failing to: (1) take into account her previous history of poor scarring from other injuries; (2) conduct a "spot test"; (3) "stop and/or alter the settings of the laser in light of the patient's expression of experiencing severe pain during the procedure"; and (4) properly evaluate the burns suffered by plaintiff inasmuch as blisters and crusting are signs of second-degree, and not first-degree burns. Marfuggi concluded that plaintiff's injuries, including the pain, burns and skin changes, were the result of defendant's deviations.
Plaintiff's counsel also read limited portions of defendant's deposition testimony into evidence, specifically those excerpts wherein he said he addressed plaintiff's post-procedure pain, as well as those wherein he denied that plaintiff was in severe pain during the procedure, received second- or third-degree burns, or required a spot test.
The defense presented no witnesses on its case-in-chief, although defendant was present during the trial. Instead, the defense sought to read into evidence additional portions of defendant's deposition admittedly unrelated to those excerpts previously read into the record by plaintiff, and addressing defendant's evaluation and treatment of plaintiff, laser hair removal generally, and spot testing. Over plaintiff's objection, the trial judge admitted this evidence, interpreting Rule 4:16-1(d) as expressly allowing such a tactic. As noted, the jury ultimately found in defendant's favor and consequently the court entered an order of final judgment dismissing plaintiff's complaint.
On appeal, plaintiff principally argues that the judge committed reversible error in allowing defense counsel to read portions of defendant's deposition without making the requisite showing of fairness under Rule 4:16-1(d). We agree.
Under our rules of evidence, deposition testimony is generally inadmissible at trial as hearsay unless it falls under one of the enumerated exceptions. N.J.R.E. 801; N.J.R.E. 802. Rule 4:16-1 sets forth instances where a deposition may be used at trial. Specifically,
At the trial . . . any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used in accordance with any of the following provisions:
(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness, or for any other purpose permitted by the Rules of Evidence.
(b) The deposition of a party . . . may be used by an adverse party for any purpose against the deponent . . . .
(c) Except as otherwise provided by R. 4:14-9(e), the deposition of a witness, whether or not a party, may be used by any party for any purpose, against any other party who was present or represented at the taking of the deposition or who had reasonable notice thereof if the court finds that the appearance of the witness cannot be obtained . . . .
(d) If only part of a deposition is offered in evidence by a party, an adverse party may require the offering party to introduce any other part which ought in fairness be considered with the part introduced, and any party may offer any other parts.
[R. 4:16-1 (emphasis added).]
Thus, under Rule 4:16-1, any deposition may be used to contradict or impeach the testimony of the deponent as a witness, or where the deponent is "unavailable," provided the party against whom the deposition is sought to be used was on notice of the deposition and had the opportunity to cross-examine the deponent. R. 4:16-1(a), (c). Further, the deposition of a party may be used at trial by the adverse party for any reason. R. 4:16-1(b). Significantly, for present purposes, paragraph (d) of the rule also "permits the adverse party to offer in evidence any part of an admissible deposition not offered by the proponent thereof[,]" Pressler, Current N.J. Court Rules, comment 1 on R. 4:16-1 (2008) (emphasis added), or "any other part which ought in fairness be considered with the part introduced . . . ." R. 4:16-1(d) (emphasis added).
Paragraph (d)'s notion of "fairness" is paralleled in N.J.R.E. 106's "doctrine of testimonial completeness." Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 106 (2008). According to the doctrine:
[T]he opponent, against whom a part of an utterance has been put in, may in his turn complement it by putting in the remainder, in order to secure for the tribunal a complete understanding of the total tenor and effect of the utterance. It has been seen, . . . that there is much opportunity for difference of opinion whether the proponent in the first instance must put in the whole. But there is and could be no difference of opinion as to the opponent's right, if a part only has been put in, himself to put in the remainder.
[State v. Lozada, 257 N.J. Super. 260, 270 (App. Div.) (alterations in original) (quoting 7 Wigmore on Evidence