Seoung Ouk Cho v. Trinitas Reg'l Med. Ctr.

• Decision Date: 30 December 2015
• Citation: 443 N.J.Super. 461,129 A.3d 350
• Parties: SEOUNG OUK CHO, deceased, by his administrator, Yunjin Jo, Yunjin Jo, Young Ho Jo, and Hannah Cui, Plaintiffs–Appellants, v. TRINITAS REGIONAL MEDICAL CENTER and NJ Heart, Defendants, and John Han Shao, M.D., Garden State Cardiovascular Specialists, Edward G. Williams, M.D., and Hyeun Park, M.D., Defendants–Respondents.
• Court: New Jersey Superior Court — Appellate Division

443 N.J.Super. 461

129 A.3d 350

SEOUNG OUK CHO, deceased, by his administrator, Yunjin Jo, Yunjin Jo, Young Ho Jo, and Hannah Cui, Plaintiffs–Appellants,

v. TRINITAS REGIONAL MEDICAL CENTER and NJ Heart, Defendants,andJohn Han Shao, M.D., Garden State Cardiovascular Specialists, Edward G. Williams, M.D., and Hyeun Park, M.D., Defendants–Respondents.

Superior Court of New Jersey, Appellate Division.

Argued Nov. 17, 2015.

Decided Dec. 30, 2015.

Michael S. Kimm argued the cause for appellants (Kimm Law Firm, attorneys; Mr. Kimm and Sung H. Jang, Englewood Cliffs, on the briefs).

Jason M. Altschul argued the cause for respondents John Han Shao, M.D. and Garden State Cardiovascular Specialists (Krompier & Tamn, L.L.C., attorneys; Richard J. Tamn, of counsel and on the brief; Mr. Altschul, on the brief).

Brion D. McGlinn argued the cause for respondent Edward G. Williams, M.D. (Ruprecht Hart Weeks & Ricciardulli, LLP, attorneys; David Parker Weeks, Westfield, of counsel and on the brief; Mr. McGlinn, on the brief).

Gary L. Riveles argued the cause for respondent Hyeun Park, M.D. (Dughi, Hewit & Domalewski, attorneys; Mr. Riveles, Cranford, on the brief).

Before Judges FISHER, ESPINOSA and ROTHSTADT.

The opinion of the court was delivered by

ESPINOSA, J.A.D.

In Klier v. Sordoni Skanska Construction Co., 337 N.J.Super. 76, 766 A. 2d 761 (App.Div.2001), we held the plaintiffs were denied due process of law when a trial court sua sponte conducted a summary procedure on the day of trial and dismissed their complaint. This medical malpractice case presents an unfortunately more common variation of the scenario in which a litigant's case is dismissed on the day of trial. Although labeled a "motion in limine," the motions filed by defendant Hyeun Park, M.D., on the day before jury selection sought the dismissal of the complaint in its entirety, an admitted violation of the rule governing summary judgment motions. We now hold that the trial court's consideration of these motions and dismissal of the complaint against Park deprived plaintiffs of their right to due process of law.

I.

Defendant Park was decedent Seoung Ouk Cho's primary care cardiologist. On April 23, 2009, he examined Cho at NJ Heart and admitted him to Trinitas Regional Medical Center because Cho complained of chest pain and had an abnormal electrocardiogram (EKG). Defendant John H. Shao, M.D., of Garden State Cardiovascular Specialists, performed a heart catheterization and an angioplasty (stent ). On June 25, 2009, Shao performed a second stenting procedure at Trinitas. On July 16, 2009, Cho complained to Park that he "was feeling a little bit worse." Park performed an EKG, which was normal, and referred Cho for a thallium stress test at Trinitas.

On July 21, 2009, defendant Edward G. Williams, M.D., administered a stress test to Cho at Trinitas. Williams was not involved in scheduling the test, had never met Cho before and did not have any prior knowledge of Cho's medical history or current condition. Williams terminated the stress test after approximately six minutes, when Cho's EKG changed and he indicated he was experiencing chest pain. Williams immediately administered nitroglycerin spray; Cho's chest pain dissipated.

Williams reached out for Shao. He explained the results of the stress test to a covering physician, who admitted Cho to Trinitas, approximately one hour after Williams terminated the stress test. Williams did not have any further interaction with Cho. On July 23, 2009, while waiting for a scheduled cardiac catheterization, Cho suffered a fatal cardiac arrest.

Plaintiffs are Cho's siblings, Yunjin Jo (Yunjin),¹ individually and in her capacity as administrator of his estate, and Young Ho Jo, and Cho's fiancée, Hannah Cui. Their complaint alleged wrongful death, medical negligence and breach of contract for medical services. As for the injury suffered, plaintiffs alleged they "lost their loved one; have suffered loss of society and consortium; and have lost other rights in relation to plaintiff Cho." Their answers to interrogatories identified plaintiffs' claim for economic damages as follows: "Plaintiff-decedent has lost at least $50,000.00 per year for at least 32 years as plaintiff-decent [sic] would have owned and operated his own business at least until age 70." In her deposition, Yunjin testified she incurred approximately $10,000 in funeral expenses for Cho. No documentation was provided to corroborate this expense or plaintiffs' claims that Cho had his own business, earned any amount of income or provided any financial support to any of the plaintiffs.

Over the course of approximately two years, defendants filed summary judgment motions that resulted in the dismissal of all of plaintiffs' complaint² except for the claims against Park.

In November 2011, the claims against Trinitas were dismissed on the ground that plaintiffs failed to comply with the Affidavit of Merit statute, N.J.S.A. 2A:53A–27 to –29.

In March 2012, defendants Park, Garden State and Shao were granted partial summary judgment, dismissing Cui's claims with prejudice on the ground that, as Cho's fiancée she was not entitled to any recovery under the Wrongful Death Act, N.J.S.A. 2A:31–1 to –6. The trial court also granted summary judgment to Shao and Garden State based upon plaintiffs' failure to produce an expert report that identified how Shao and Garden State deviated from the accepted standard of care.

In July 2012, the claims against Williams were dismissed on the ground that plaintiffs failed to show his alleged negligence proximately caused Cho's death.

In August 2013, the trial court granted Park's motion to exclude the testimony of plaintiffs' economic expert on the ground that his opinion constituted a net opinion. Plaintiffs filed a motion for leave to appeal this order, which was denied by this court.

Thereafter, plaintiffs filed a motion for leave to appeal with the Supreme Court, which denied the motion on December 18, 2013.

In sum, as of August 2013, summary judgment had been granted dismissing the complaint against all defendants other than Park. All claims asserted by Cho's fiancée under the Wrongful Death Act had been dismissed with prejudice. As a result of the order barring Frankenfeld's expert opinion, plaintiffs lacked expert testimony to support their claims that they suffered the loss of economic support from Cho. As of December 18, 2013, no requests for appellate review were pending.

II.

The matter was listed for trial on Monday, March 31, 2014. This was the second trial date, coming four weeks after the first trial call before the presiding judge. Addressing the parties, the trial judge noted neither the plaintiffs nor defendant Park wanted to pick a jury that day and stated she understood the parties had "in limine motions" to be heard. She announced a jury would be selected "first thing Wednesday morning," followed by opening statements on Wednesday afternoon. She directed plaintiffs' counsel to bring all exhibits for marking before 9:00 a.m. Park's counsel confirmed he had no issue with any of the exhibits. The court reviewed the order of witnesses and that the defense expert would testify before plaintiffs' expert.

When the trial judge turned to address defendant Park's motions, defense counsel was not prepared to argue any in limine motions. He stated,

Judge, I, I did point out in chambers that I may have a motion on Wednesday, and that is to dismiss. I'm still mulling it over, because I don't know what damages are left in this case.

As I said, the Complaint does not reference a survival cause of action. [N.J.S.A. ] 2A:15–3 is not pled even remotely in the Complaint. And as it relates to income loss, that's gone. So, all that's left is companionship advice and Counsel. And that was not referenced [in] the Answers to Interrogatories. So, I have an Associate working on that for me right now.

[ (Emphasis added).]

After further discussion, the trial judge stated she would like to "have some time to reflect on [the motion]" and asked to have the motion filed and served by the following day. Plaintiffs' counsel was not asked for his consent to this procedure and did not pose an objection. The court then proceeded to address plaintiffs' in limine motions.

Park's motion papers were filed on the following day, April 1, 2013. In a sixteen-page brief, Park argued that plaintiffs' wrongful death claim should be dismissed with prejudice because their proofs of economic loss were "too speculative to present to a jury," that the claim for punitive damages should be dismissed with prejudice, and that plaintiffs should be barred from presenting any evidence of pain and suffering by Cho because no survival claim had been pleaded. Finally, Park argued that if the requested relief were granted, no viable claim remained and the complaint should be dismissed in its entirety with prejudice.

With exhibits, Park's submission was 260 pages long. Although there were some citations to the record included in the brief, the moving papers did not include a statement of material facts or otherwise conform to the requirements of Rule 4:46–2(a).

Plaintiffs' five-page opposition was filed and served by email on the same day, within hours of Park's filing. Plaintiffs cited N.J.S.A. 2A:31–5, which authorizes the jury to award

such damages as they shall deem fair and just with reference to the pecuniary injuries resulting from such death, together with the hospital, medical and funeral expenses incurred for the deceased, to the persons entitled to any intestate personal property of the decedent.

[ (Emphasis added).]

Plaintiffs noted that in addition to her contention that she anticipated financial support from Cho, Yunjin testified she paid approximately $10,000 in funeral expenses. They argued further that the complaint could be fairly read to allege a survival action because Cho's sister, brother and fiancée were named as individual parties.

On the following day, the trial judge expressed her reluctance...