Johnesee v. Stop & Shop Companies, Inc.

• Decision Date: 05 June 1980
• Citation: 416 A.2d 956,174 N.J.Super. 426
• Parties: Everett G. JOHNESEE and Mary J. Johnesee, Plaintiffs-Respondents, v. The STOP & SHOP COMPANIES, INC., a corporation of the State of Massachusetts authorized to do business in the State of New Jersey, and H. J. Heinz Company, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 426

174 N.J.Super. 426

416 A.2d 956

Everett G. JOHNESEE and Mary J. Johnesee, Plaintiffs-Respondents, v. The STOP & SHOP COMPANIES, INC., a corporation of the State of Massachusetts authorized to do business in the State of New Jersey, and H. J. Heinz Company, Defendants-Appellants.

Superior Court of New Jersey, Appellate Division.

Argued Feb. 5, 1980.

Decided June 5, 1980.

Frank P. Addas, Jersey City, for defendants-appellants (James & Addas, Jersey City, attorneys).

William O. Barnes, Jr., Newark, for plaintiffs-respondents.

Before Judges MATTHEWS, ARD and POLOW.

PER CURIAM.

Plaintiffs instituted this action against their local supermarket, Stop & Shop, and against the H. J. Heinz Company, alleging that plaintiff Everett was poisoned by a can of mushroom soup sold by Stop & Shop and manufactured by Heinz. Plaintiffs asserted claims of negligence, breach of warranty and strict liability against both defendants. Plaintiff Mary sued for loss of consortium. A jury returned a verdict against both defendants of $25,000 as to Everett and $5,000 as to Mary.

Defendants challenge several evidential rulings by the trial judge. They first question his exclusion of the testimony of their only medical expert, Dr. Lewis. The controversy arose because of the lack of certainty expressed by Dr. Lewis in his three reports provided to plaintiffs during discovery. The first report, dated June 28, 1976 and summarizing the physical examination, reached no final conclusion because Dr. Lewis wanted to examine the hospital record. He offered the following, however: "Pending that information (the hospital record), it appears to be medically improbable that the patient's hepatitis resulted from the meal in question." No basis for that hypothesis appears in the report.

A second report, also dated June 28, 1976, discussed the possible causes of Everett's hepatitis. Dr. Lewis listed the three usual causes: exposure to another person so inflicted (infectious hepatitis); internal contact with contaminated blood (serum hepatitis), a common source for those who use syringes, as do morticians (Everett was a mortician), and ingestion of contaminated food (infectious hepatitis). Of the three, he termed the last the "least likely possibility," because (1) plaintiff ate the soup on September 22 and collapsed on September 28, a period too short for the expected two-week incubation period, and (2) plaintiff's wife did not contract hepatitis despite having eaten the same soup. ^*

Dr. Lewis issued his final report on August 5, 1976 after having reviewed the hospital record. In pertinent part he reasoned:

The doctors make a diagnosis of "infectious hepatitis" but there is no way in which the nature of that infection was established. Nothing was done which would help differentiate ordinary infectious hepatitis, from the usual unknown sources (another person carrying the virus) from food contamination source. We do know now, however, that he was Australian antigen positive. The odds now begin to shift in the direction of contamination of his blood, possibly as a result of his professional work as I previously explained. In ordinary infectious hepatitis only 20% of patients become Australian antigen positive. Serium (sic ) hepatitis contracted from contaminated blood, some 80% become positive. The odds, obviously shift, in the direction of so-called serium (sic ) hepatitis (now known as hepatitis-B).

He concluded by ranking the causes by possibility:

In essence, then, I would now place the possibilities, in terms of etiology, in the following order of likelihood:

1. Serium (sic ) hepatitis (hepatitis-B) caused by contaminated blood at work.

2. Ordinary infectious hepatitis (hepatitis-A) from an unknown source in the general population.

3. Hepatitis as a result of the contaminated food which did not produce hepatitis in the wife.

At trial Dr. Lewis testified that "serum hepatitis is not a serious consideration here . . . The most likely source is the decision (sic ) he caught it from someone else in the general community." At that point plaintiffs' counsel objected because the doctor had failed to cast his opinion in terms of reasonable medical probability. He further complained that Dr. Lewis addressed only possibilities in the reports provided in discovery; he claimed surprise if the doctor were permitted to now change his opinion to reflect probabilities. Defense counsel countered that the reports indeed did reflect probabilities, although perhaps not worded precisely enough, and he requested the chance to ask the doctor what he had meant.

The trial judge sustained plaintiffs' objection, ruling that Dr. Lewis's opinion was inadmissible because his reports did not mention "medical probability," and that to permit him to explain his opinion would result in unfair surprise.

It is true that medical-opinion testimony must be couched in terms of reasonable medical certainty or probability; opinions as to possibility are inadmissible. Gribbin v. Fox, 130 N.J.L. 357, 359 (Sup.Ct.1943), aff'd 131 N.J.L. 187, 35 A.2d 719 (E. & A. 1944); In re Quackenbush, 156 N.J.Super. 282, 287, 383 A.2d 785 (Cty.Ct.1978). See Annotation, "Admissibility of opinion evidence as to cause of death, disease, or injury," 66 A.L.R.2d 1082, 1118-1126 (1959). But we do not think Dr. Lewis's testimony lacked the requisite certainty. The doctor's first two reports, however suspect they might have been from an evidential weight standpoint, clearly expressed the opinion that it was not reasonably probable that the soup caused the hepatitis. Dr. Lewis felt that other causes were more probable, although he could not say which. It is not a defendant's burden to prove by a reasonable medical probability what caused the claimed injury. That is plaintiff's burden, and a defendant should be able to rebut any such proof by medical evidence negating the claimed cause. The point is that plaintiff's counsel knew or should have known that at trial Dr. Lewis would challenge the alleged cause. Indeed, plaintiff presented Dr. Martinez, who testified that the soup was the probable source. Any additional witnesses would have been cumulative.

Furthermore, Dr. Lewis should have been permitted to explain whether his ordering of possibilities in his final report could be interpreted in terms of medical probabilities. Regardless of the terminology he used, his listing at least should have informed plaintiff that number three (the soup source) was deemed by him not to be the probable cause. If at trial the doctor was unwilling to assess reasonable medical probabilities, then the judge would have been warranted in excluding his testimony. But if Dr. Lewis were able to so testify, the jury was entitled to consider that evidence as a counterweight to Dr. Martinez and to resolve the conflict in its role as the factfinder.

Next defendants argue that the trial court erroneously excluded the testimony of John Dryer, the quality-assurance manager for Heinz.

After defendants made an offer of proof concerning Dryer's proposed testimony, plaintiffs' counsel objected that nothing provided in discovery disclosed the intended testimony, and that in any case, it would be irrelevant to the issues of breach of warranty and strict liability. (Defendants conceded that the testimony was not offered to rebut negligence.) A voir dire was conducted, during which Dryer testified on three...