Lawlor v. Kolarsick

• Decision Date: 14 October 1966
• Docket Number: No. A--430,A--430
• Citation: 223 A.2d 281,92 N.J.Super. 309
• Parties: Ethel LAWLOR and Joseph LAWLOR, Plaintiffs-Appellants, v. A. J. KOLARSICK and Charles W. PATERNO, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 309

92 N.J.Super. 309

223 A.2d 281

Ethel LAWLOR and Joseph LAWLOR, Plaintiffs-Appellants, v. A. J. KOLARSICK and Charles W. PATERNO, Defendants-Respondents.

No. A--430.

Superior Court of New Jersey

Appellate Division.

Argued Oct. 3, 1966.

Decided Oct. 14, 1966.

William H. Burns, Jr., Keyport, for appellants (Kantor & Burns, Keyport, attorneys).

James D. Carton, III, Asbury Park, for respondents (Carton, Nary, Witt & Arvanitis, Asbury Park, attorneys).

Before Judges CONFORD, FOLEY and LEONARD.

The opinion of the court was delivered by

FOLEY, J.A.D.

In this medical malpractice case plaintiffs appeal from a judgment for defendants entered upon a jury verdict of no cause of action.

Plaintiffs contend that the trial court abused its discretion in permitting 'extensive cross-examination of an expert witness on inflammatory matters not relevant to the issues' of the case.

Consideration of plaintiffs' argument requires reference to the 'Excerpts from Transcript' contained in the appendix, which consist solely of the testimony of Dr. Emanuel M. Josephson. The doctor was called as a witness by plaintiffs to render an opinion that defendants in their care and treatment of plaintiff Ethel Lawlor departed from standards of care recognized in the medical profession. In the course of the preliminary examination relative to qualifications, the doctor testified to his premedical and medical training and experience, his research of the surgical problem involved in the action, and the nature and extent of his activities as a practicing member of the medical profession. In the latter connection he stated:

'I have been engaged Primarily in general medical work with special interest at various times in various fields. I am engaged in the practice of medicine as well as research. Research has been the basis of publication of numerous papers and leading journals here and abroad and also three books embodying my Researches in medicine.' (Emphasis added)

At this juncture the following occurred:

'Mr. Burns (plaintiffs' attorney): My hypothetical is going to take some time. Do you wish to cross-examine on the qualifications before I start, rather than have me read a question for twenty minutes?

The Court: Is there any cross on the qualifications?

Mr. Carton (defendants' attorney): Well, it will be rather extended. I don't know whether I should do it now or as part of my general cross-examination. I will do it either way the Court wants.

The Court: I think perhaps we had better dispose of it at this point.'

Defendants' attorney then conducted the cross-examination which is under review. Strictly speaking, it might well be said that portions of the cross-examination, if proper, were more appropriate to general cross-examination, as distinguished from cross-examination on qualifications, as defendants' attorney anticipated. However, plaintiffs make no point of this in their brief and the attorney for plaintiffs frankly stated on oral argument that the same objections to the cross-examination would have been made had it been a part of the general cross-examination. Furthermore, the witness was not held to be disqualified by the court, and the weight and sufficiency of the testimony was submitted to the jury subject to its determination of credibility. Thus, the meritorious question before us is whether the trial judge, regardless of the stage of the case, mistakenly exercised his discretion in granting the latitude of cross-examination which appears in the record.

In this connection it should be pointed out that the scope of cross-examination is a matter for the control of the trial judge and that an appellate court will not interfere with such control unless clear error and prejudice is shown. Soronen v. Olde Milford Inn, 84 N.J.Super. 372, 373, 381, 202 A.2d 208 (App.Div.1964). Accord, Rivera v. Grill, 65 N.J.Super. 253, 167 A.2d 638 (App.Div.1961), certification denied 34 N.J. 471, 169 A.2d 745 (1961); Rynar v. Lincoln Transit Co., 129 N.J.L. 525, 30 A.2d 406 (E. & A.1943).

Plaintiffs at the outset of their brief concede that this is the rule. They argue only that questions put to the doctor concerning the contents and titles of some of his non-medical writings were intrinsically 'inflammatory,' and wholly irrelevant to the issues presented in this medical malpractice case, as for example, pamphlets written by the doctor entitled 'The Strange Death of Franklin D. Roosevelt,' and 'Rockefeller, the Internationalist,' 'Wake Up America! We Finance Rockefeller Interest,' 'America's Betrayal, the Rockefeller Empire,' 'Kennedy's General Aniline Deal,' and an article, 'The Red Record of Adlai Stevenson, Stalin's Choice for President,' and his allusion to Nelson Rockefeller personally.

Standing alone, it is doubtful that the admitted discretion of the trial judge would be so broad as to permit the doctor's political, and perhaps economic, views to reach the ears of a jury. However, they may not be so isolated, but must be considered in the context of the doctor's entire testimony, and the legitimate purposes of cross-examination. As noted above, the witness attempted to convey the impression that he was qualified to testify by reason of the fact, among others, that he devoted his time primarily to general medical work and medical research and that he was essentially a 'full time' practicing doctor. The stated purpose of the cross-examination under scrutiny was to establish that the doctor's interests were deeply involved in time-consuming activities in other fields which affected his credibility in his assertions...