Klimko v. Rose

• Decision Date: 20 November 1980
• Citation: 422 A.2d 418,84 N.J. 496
• Parties: George KLIMKO and Theresa Klimko, Plaintiffs-Appellants, v. Angelo C. ROSE, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 496

84 N.J. 496

422 A.2d 418

George KLIMKO and Theresa Klimko, Plaintiffs-Appellants, v. Angelo C. ROSE, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Sept. 25, 1979.

Decided Nov. 20, 1980.

Joseph A. Spinella, Clifton, for plaintiffs-appellants (Eugene D. Molinaro, Bloomfield, attorney).

Anthony C. Stuart, Newark, for defendant-respondent (Pantages, Sellar, Richardson & Stuart, Newark, attorneys).

The opinion of the Court was delivered by

WILENTZ, C. J.

Plaintiffs, George and Theresa Klimko, brought this action against Dr. Rose, a chiropractor, for injuries to Mr. Klimko including a stroke and temporary paralysis, which allegedly resulted from chiropractic adjustments performed upon by him by defendant. Plaintiff's only expert witness was a medical doctor. For reasons discussed below he was unavailable for cross-examination, and his direct testimony was therefore stricken. Believing that he had no case without the stricken testimony, Klimko moved for a mistrial. The trial court denied the motion, and after some additional direct testimony, granted defendant's motion for involuntary dismissal. The Appellate Division's affirmance of that dismissal is now before us for review.

In September 1973, George Klimko sought treatment from defendant for back and neck pains that developed after he had spent Labor Day weekend working around his back yard.¹ Both he and his wife had seen Dr. Rose for back pains on prior occasions. Dr. Rose, as he had before, manipulated Klimko's spine while Klimko lay face down on a table. On a second visit, in addition to the manipulation familiar to Klimko, Dr. Rose performed a different treatment. He instructed Klimko to lie on his left side. Dr. Rose then placed one hand under the left side of plaintiff's neck and with the other hand thrust down on the right side of plaintiff's neck. After this treatment Dr. Rose told the plaintiff to sit up, which he did. He felt dizzy and sweaty, and so told the doctor, who told him to "... sit there a while because some people are affected this way, it will wear off." Dr. Rose then told him to go out to the waiting room. Plaintiff remained several minutes; although he still felt dizzy, he decided to go home.

When he arrived home his wife noticed that his skin was "sort of a gray color and his eyes didn't look very clear." Klimko was still dizzy, had no appetite, refused lunch and went to sleep immediately. When he awoke he still did not feel quite right. Mrs. Klimko, concerned about the continued dizziness, called Dr. Rose and advised him of her husband's condition. Dr. Rose told her that plaintiff should come back to see him that night. During that evening visit, on September 13, Dr. Rose performed the regular back adjustment. At this point the dizziness had disappeared, but Klimko was still suffering the pain and tightness in his back.

The symptoms of tightness and pain in his back persisted, and Klimko visited Dr. Rose again. Dr. Rose performed the regular adjustment, moving the vertebrae with his hands starting in Klimko's lower back and continuing up to the shoulder blades. Klimko suffered no dizziness or sweatiness during this treatment or when he sat up after it.

During the next and last visit, the regular adjustment was performed. In addition, Dr. Rose again thrust against the right side of Klimko's neck precisely as he had on the second visit. When plaintiff sat up, he felt not only dizzy and sweaty but nauseated as well. After sitting in the waiting room for a few minutes, he collapsed. Dr. Rose loosened Klimko's clothing, ordered his nurse to take Klimko's blood pressure, and summoned an ambulance. He concluded that Klimko had suffered a stroke.

Klimko was hospitalized for 16 days. He was paralyzed on his left side and unable to speak. He lost the use of his left arm completely for a period of time and was out of work for 27 weeks. Although the severe symptoms had receded, plaintiff continued to suffer some permanent residual effects.

At trial Klimko's expert witness, Dr. Gruber, a physician, testified that the cause of the stroke was the pressure applied by Dr. Rose to Klimko's neck. He explained that the brain is supplied with oxygen by two arteries, one on each side of the neck running up to the brain, and that these arteries are often of different sizes. In Klimko's case, the one on the right side was much larger than normal, the one on the left much smaller. Thus when Dr. Rose applied the pressure or thrust to the right side of the neck the flow of blood to the brain from this larger artery was completely stopped. Since the artery on the left side was so much smaller, the blood supply from it was insufficient to provide adequate oxygen to the brain, resulting in a stroke. When asked whether the treatment rendered by Dr. Rose conformed to applicable standards, Dr. Gruber was not permitted to answer because he had stated that he had no knowledge of standards of treatment applicable to chiropractors.

Dr. Gruber appeared the next day for cross-examination but plaintiff's counsel allowed him to leave to perform an emergency operation, since the trial judge was temporarily engaged in other matters. Dr. Gruber never appeared again. When his failure to reappear prevented the trial from proceeding, the trial judge stated that whether plaintiff subpoenaed him or not, the trial judge himself was going to ensure the doctor's presence by issuing a warrant for his arrest if necessary.²

The record shows that the difficulty with Dr. Gruber's reappearance related to his demand for additional fees. Mr. and Mrs. Klimko immediately attempted to resolve the problem without success. Plaintiffs' counsel also tried to get in touch with the doctor. A certified check for the amount he required was prepared but for reasons not revealed in the record it could not be delivered to him. In sum, plaintiffs made a good faith attempt to have the doctor appear on the next trial day. The court, however, appeared to believe, mistakenly, that it had ordered plaintiffs to serve the doctor with a subpoena, and that plaintiffs were somehow at fault for not having issued one. The court refused to continue the matter. On motion of defendant, who had not had the opportunity to cross-examine Dr. Gruber, the court struck his testimony.

Having no other expert witness, plaintiffs' counsel moved for a mistrial. Dr. Gruber's testimony provided the only causal connection between Dr. Rose's treatment and Klimko's injury. Once the court struck that testimony, all that remained under the proofs was the occurrence of the manipulations and a subsequent injury. There was nothing before the jury that would provide either the causal connection between the two or any deviation from any applicable standard of care.

The trial judge denied the mistrial motion. He concluded that by virtue of the failure to subpoena Dr. Gruber, counsel had caused the problem; moreover, to grant a mistrial would be a waste of time since Dr. Gruber, having no knowledge of standards applicable to chiropractors, could not at this or any other trial establish Dr. Rose's negligence. Plaintiffs' counsel then called Dr. Rose himself to the stand, to no avail. That completed his case. The court thereafter granted defendant's motion for involuntary dismissal.

The Appellate Division affirmed, in an unreported decision, holding that the trial judge's refusal to grant a mistrial was not an abuse of discretion. Judge Horn dissented on the ground that the dereliction of plaintiffs' counsel, if any, was insufficient to warrant the total denial of relief that necessarily resulted from the refusal to grant a mistrial. He concluded that the trial court's mistaken exercise of its discretion warranted a new trial. He also raised the question, but found it unnecessary to determine, whether Dr. Gruber's testimony along with plaintiffs' might not have been sufficient to require submission of the case to the jury. He concluded that since Dr. Gruber's testimony had been stricken the question of its sufficiency was "out of the case." He did note, however, several exceptions to the rule requiring expert testimony to establish malpractice and suggested that one or more might be applicable to the present facts. The Klimkos appealed as a matter of right. R. 2:2-1(a)(2).

Were it clear that Dr. Gruber's completed testimony would have allowed submission of the case to the jury, the need for reversal would be plain. Failure to produce this witness, however, was not plaintiffs' fault; at most it was excusable neglect. Under the circumstances present here, where a party's claim was completely dependent upon a particular witness's testimony, inability to produce that witness-as distinguished from neglect or willful failure-and the almost certain irretrievable loss of the claim warranted a mistrial, and refusal to grant one was a mistaken exercise of discretion. Cf. Nadel v. Bergamo, 160 N.J.Super. 213, 389 A.2d 500 (App.Div.1978) (error to grant summary judgment when plaintiff's medical expert died; trial court should have allowed time to find new expert); Carbone v. Warburton, 22 N.J.Super. 5, 14-15, 91 A.2d 518 (App.Div.1952), aff'd 11 N.J. 418, 94 A.2d 680 (1953) (trial judge should exercise discretion liberally in accepting qualifications of plaintiff's medical expert in order to afford plaintiff opportunity for remedy); Pepe v. Urban, 11 N.J.Super. 385, 389, 78 A.2d 406 (App.Div.), certif. den., 7 N.J. 80 (1951) (trial judge's failure to adjourn or grant dismissal without prejudice when plaintiff's medical expert for damages did not appear infringed plaintiff's substantial rights; new trial granted). See generally Greenberg v. Stanley, 30 N.J. 485, 503, 153 A.2d 833 (1959); Wright v. Bernstein, 23 N.J. 284, 296, 129 A.2d 19 (1957); Schuttler v. Reinhardt, 17 N.J.Super. 480, 484-86, 86 A.2d 438 (App.Div.1952).

The situation here, however, is somewhat different. Both the trial court and the Appellate...