Loislaw Federal District Court Opinions

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HAYES v. CHA, (D.N.J. 2004)
338 F. Supp.2d 470
MARY I. HAYES, et al., Plaintiffs, v. DONG S. CHA, M.D., Defendant.
Civil No. 00-1101(JBS).
United States District Court, D. New Jersey,
Camden Vicinage.
September 29, 2004
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Frank D. Allen, Esquire, Patrick M. Flynn, Esquire, Archer &
Greiner, P.C., Haddonfield, New Jersey, Counsel for Plaintiffs
Mary and Edward Hayes.

Louis J. Dughi, Jr., Equire, Robert W. Donnelly, Jr., Esquire,
Dughi, Hewit & Palatucci, P.C., Marlton, New Jersey, Counsel for
Defendant Dong S. Cha, M.D.

OPINION

JOEL ROSEN, Magistrate Judge

I. INTRODUCTION

Presently before the court is the defendant's motion for a new
trial or in the alternative for remittitur pursuant to
Fed.R.Civ.P. 59(a). Also before the court is the plaintiffs' motion to
amend the judgment order to include prejudgment interest pursuant
to Fed.R.Civ.P. 59(e). The court has rarely witnessed a suit
fraught with such complexity, both factual and procedural, as was
the medical malpractice suit brought by Mary I. Hayes and her
husband, Edward J. Hayes. The complexity derived in part from the
difficulty in diagnosing Mrs. Hayes's malady, a diagnosis which
was not obtained until nearly two years following the suit's
inception. The case chronicled an odyssey of epic proportions
borne principally by the Hayes: the lengths to which Mr. and Mrs.
Hayes went to discover the source of Mrs. Hayes's injury and the
suffering that she and her husband endured throughout the
litigation and into today and tomorrow. The jury was apprised of
the Hayes's travails and awarded them $20 million in compensation
for their suffering. The validity of the jury's finding and the
propriety of that award, as well as certain of this court's
evidentiary rulings, are at issue in the instant motions.

After having carefully considered the submissions of the
parties, the trial testimony, and the relevant jurisprudence, the
court shall deny the defendant's motion for a new trial on
liability, grant in part the defendant's motion for a remittitur,
remitting the verdict from $15 million dollars to $10 million
dollars in favor of Mrs. Hayes, and from $5 million dollars to $1
million dollars in favor of Mr. Hayes, and grant in part the
plaintiffs' motion for prejudgment interest. Should the
plaintiffs not accept the court's remittitur, the court shall
grant in part the defendant's motion for a new trial and order a
new trial on damages only.

II. FACTUAL AND PROCEDURAL BACKGROUND

On March 7, 2000, Edward and Mary Hayes filed suit against Dr.
Dong S. Cha alleging that Dr. Cha committed medical malpractice
and failed to supply Mary Hayes with sufficient information to
constitute informed consent in connection with the full face-lift
plastic surgery performed on Mary Hayes on September 22, 1995.
Mr. Hayes asserted a loss of consortium claim. Jurisdiction was
based on diversity of citizenship. The trial in the above matter
occurred on December 1-5 and 8, 2003 and the instant motions
followed. The parties briefed the issues through April 2004. The
defendant objects to the verdict and asserts that a new trial is
warranted on several grounds: (1) that the overwhelming weight of
the evidence negates any reasonable finding of causation between
the 1995 surgery and the October 2001 diagnosis of mycobacterium
fortuitum; (2) that the plaintiffs failed to carry their burden
on informed consent; (3) that the court erred by allowing
cross-examination of Dr. Cha with a $50 check which had not been
produced in discovery, by allowing cross-examination of Dr. Cha
with sterilization standards promulgated
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in 1998, and by allowing
the plaintiffs to exploit the court's ruling regarding the
defendant's motion in limine to preclude reference to Dr. Cha's
two-month active suspension; and (4) that the jury award shocks
the conscience requiring, at the very least, a new trial on
damages or a remittitur. The plaintiffs oppose the defendant's
motion, asserting that the jury's verdict was reasonable both on
liability and on damages. The plaintiffs further maintain that
the court did not commit error during the trial. These arguments
require a complete review of the evidence presented to the jury.

Beginning with the opening statement through the closing, the
plaintiffs delivered a focused and complete explanation of Mrs.
Hayes's injury. The plaintiffs called Mr. Hayes as their first
witness. Mr. Hayes's testimony outlined the entire theory of the
plaintiffs' case. He was a very credible witness, who observed
not only his wife's illness during the course of their day-to-day
life, but who attended nearly every one of his wife's doctor
appointments with her during the critical period. Mr. Hayes spoke
about their life together and how it has changed since the
surgery. He also spoke knowledgeably about the development of his
wife's illness, their search for the cause, the myriad doctors
and diagnoses and treatments, the final accurate diagnosis of
mycobacterium fortuitum, and the treatment of that illness.

Mr. Hayes, a lawyer who splits his practice between general
corporate representation and professional baseball player
representation, testified about the Hayes's life before the
surgery:

Our life was good at the time. Her health was good.
We had a very active life. We vacationed generally
twice a year. We would travel to Florida in March
each year for my — for the baseball portion of my
practice to meet with clientele in Florida. My wife
would host a party for the players and their parents
at Christmas time each year, we always thought it was
a good idea for them to get together with one
another, for parents to speak to one another. We
would host a picnic every year, it used to be called
the Hayes Annual Picnic on the Fourth of July where
we would have people over. Go out to dinner
regularly. Although I'm not a big gambler, we made it
a habit of going to the casino to see a show or
gamble once a month. We were both very, very active.
She at the time was very active with painting and
sculpting. After she had stopped working, she had
returned to the Moore College of Art and Design for
art, which was something that she always wanted to
do. So, we had a very active life.

(T. 219:7-25). This testimony was corroborated by two of the
Hayes's family friends, Denise Manto and Orlando Terry Anderson.
Ms. Manto, a good friend of the Hayes and the wife of one of the
baseball players whom Mr. Hayes represents, testified that Mary
was the life of the party, very social, an artist, and very
instrumental in getting the local players and their families
together and in supporting them. (T. 411-412, 415). Mr. Anderson
indicated that he was Mary's best friend, and that before the
surgery they would see each other, either singly or with their
spouses, socially about once a week. He also described Mrs. Hayes
as the life of the party. (T. 420).

Mr. Hayes also testified about his wife's health problems
before the surgery, which he described as minimal: "I mean, there
was the problem going through the change where she had
discomfort, hot flashes. She had some acne that came about the
same time as the hot flashes. She had some rheumatoid arthritis
in the past that was particularly evident in her hand, her
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fingers, her knuckles had swollen that made painting difficult
for a while. But generally, both of us, thank God, were healthy."
(T. 220:1-9).

Mr. Hayes further testified about Mrs. Hayes's September 22,
1995, surgery by Dr. Cha, all of which testimony Mrs. Hayes
corroborated on the record. On the date, given the extensive
nature of the full face-lift surgery, Mrs. Hayes was nervous.
Indeed, Dr. Cha had prescribed valium for her to calm her nerves
before the surgery. Mr. Hayes recalled that Mrs. Hayes did not
want to have to wait at the doctor's office for the surgery to
begin, so they were scheduled as the first surgery, early in the
morning, "eight or nine o'clock." (T. 220:15-19). Mrs. Hayes was
not, however, the first surgery performed that day. Upon arrival,
the Hayes were told that there was an emergency liposuction and
they would have to wait. (T. 221:13-16). Mrs. Hayes was not taken
in for surgery until around 11:30 or 12 noon. (T. 221:18-21).

According to Dr. Cha's testimony, his usual practice is to meet
with the patient before the surgery, but Mr. Hayes testified that
Dr. Cha did not meet with the Hayes before the surgery that
morning. (T. 221:22-222:1). During the surgery, however, Dr. Cha
or his anesthetist (Mr. Hayes was not certain which), came to Mr.
Hayes and explained that during the course of the surgery, the
doctor had "noticed a growth" on Mrs. Hayes's nose: "[E]ither Dr.
Cha or his anesthetist came out and said that the doctor during
the course of the surgery had noticed a growth on the bridge of
my wife's nose, that he was convinced it was cancerous and that
he wanted to remove it as part of this process, but that he could
not do it without consent. And obviously, since my wife was
anesthetized at the time, she couldn't give the consent, would I
give the consent. I mean, I was shocked to be told that my wife
had cancer on her nose and said absolutely, do what you need to
do to take it off." (T 222:7-16). Later tests revealed that the
growth was not cancerous. (T. 222:18-19).

After the surgery, Mr. Hayes testified, he attended several of
his wife's post-operative appointments with Dr. Cha. Mr. Hayes
further testified that "[s]hortly after the surgery, she
developed a redness along the left jawline." (T. 223:12-13). He
also recalled an appointment on October 31, 1995, where his wife
had a complaint about her earlobe being swollen and red. Mr.
Hayes testified that he attended one more appointment after the
October 31 appointment and that "[t]here was redness in the jaw"
and "lumps under her neck." (T. 223-24). Dr. Cha stated that such
redness and swelling was not unusual, and he prescribed a cream,
which he sold to Mrs. Hayes. Mr. Hayes testified that his wife
returned to Dr. Cha several times after this last visit that Mr.
Hayes attended. (T. 224).

Mr. Hayes testified that his wife would ask him periodically to
feel the lumps in her skin, but Mr. Hayes did not want to do it
because the skin appeared sore, "it was almost like a brush
burn." (T. 224:22-23). Several months after the surgery, a lump
"opened as a small sore, and it was different in my mind than
what she had been experiencing with the change with a pimple,
this was a sore. And it wouldn't bleed, it would drain, they were
small, and then over time it would close up." (T. 224:23-225:3).
Mr. Hayes testified that the lumps and sores would rise and open
throughout 1996. Mrs. Hayes could almost plan the timing of the
development and opening of the sores. They started out in the
area of her chin, and then spread around her face, finally
involving her chin, neck, cheeks, nose, and forehead.
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During 1996
and early 1997, Mr. Hayes was not concerned because the lumps and
sores were small and they would drain and close. Moreover, Mrs.
Hayes's estrogen prescription was changing, and the lumps and
sores were then attributed to the estrogen and her menopause. (T.
225-26).

Mr. Hayes began to be alarmed, however, in the summer of 1997.
At that time, the sores started getting larger. (T. 226). Mr. and
Mrs. Hayes went to see their family doctor, Dr. Glickman, who
said it was "the worst thing he had ever seen," confirming Mr.
Hayes's concerns. (T. 226). Dr. Glickman referred them to Dr.
Abraham, whom they consulted in August 1997. (T. 227:10). Both
Dr. Abraham and Dr. Farber, whom Mrs. Hayes consulted once in
1996, diagnosed her with acne and prescribed antibiotic creams to
put on the wounds. (T. 227:12-15).

Between 1997 and 1998, Mrs. Hayes treated with several doctors,
all with Mr. Hayes's involvement and participation. They visited
Dr. Bondi three times with three different diagnoses: rosacea,
then combination of rosacea and acne, then infected hair
follicles. Mr. Hayes "really didn't have a lot of comfort." (T.
228:4-5). Then were then referred (through a baseball team
doctor) to Dr. Hurley, whom they consulted twice. Dr. Hurley
blamed Mr. Hayes for his wife's malady, indicating that Mr. Hayes
was "stressing his wife out" and that "[he] was causing it." (T.
228:17-18). Mr. Hayes described how he cried after being blamed
for his wife's medical problem. After Dr. Hurley, the Hayes
returned to Dr. Milgraum, the physician who had performed Mrs.
Hayes's eyelid surgery in 1994. He diagnosed her with rosacea.

The next notable event in the Hayes's lives was the spring
training trip to Florida in March 1998. The day before they were
to leave for the trip, a sore on Mrs. Hayes's cheek opened up and
expelled a small piece of green wire that resembled fishing wire.
This was extremely frightening for the Hayes's and painful for
Mrs. Hayes. Mr. Hayes dropped the wire off at Dr. Glickman's
office, and the couple left for the Florida trip the following
day. The Hayes offered a photograph of this sore into evidence,
which the Hayes testified they took only so that Dr. Glickman
would be able to observe the wound before it healed, as they were
in Florida and believed it could close before they returned from
their trip. Mr. Hayes described not only Mrs. Hayes's agony on
this trip, but her seclusion from the usual events with the
baseball players and their wives. (T. 229-31).

Because Mrs. Hayes was still not getting relief from her
problem, Dr. Glickman referred them next to Dr. Manstein at
Jean's Hospital, with whom they consulted twice. Dr. Manstein
performed the first biopsy the results of which were inconclusive
— Dr. Manstein suggested that Mrs. Hayes's sores were cause
either by a herpetic condition or possibly by suture abscess. (T.
232).

Finally, in 1999 during a gynecological appointment, Mrs. Hayes
had some open wounds and the gynecologist recommended another
doctor, Dr. Krause. The Hayes's first appointment with Dr. Krause
was in August 1999. Dr. Krause believed that the cause of Mrs.
Hayes's condition could be silicon that had been injected in her
face and was causing the eruptions, but that cutting open her
face would not reveal the silicon. Thus, Dr. Krause started
interlesional injections. (T. 233). Mr. Hayes testified that for
up to a year, "on a regular basis, sometimes weekly, my wife
would be taken back into his operating area, sedated, and he
would inject her face with needles to try to break up what he
believed at that point in time was silicon,
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at the same time he
was doing some biopsies and sending them out for chemical
analysis to try to find the presence of silicon." (T.
233:23-234:3). This intensive treatment had a radical effect on
their lives:

Our life had changed dramatically by that point in
time. We did not go out, she both did not like her
appearance during that period of time, also had open
wounds through a good part of that time, and didn't
want to be seen, quite frankly, out. She did not go
out much herself to do things that she had done
before, little things like food shopping, little
things like cooking, which my wife had done before,
she was not doing during this period of time. I mean,
she was sick.

(T. 234:20-235:2).

In 2000, Mrs. Hayes started to complain that she felt strangled
by the lumps under her neck, which had continued to be present
throughout the progression of her condition. She was at that
point admitted to the hospital, and Dr. Krause cut her neck open
and pulled the skin down and removed "granuloma." (T. 236:4). She
received some relief from the pain in her neck during that period
of time. Dr. Krause performed many surgical procedures. (T. 236).
Before the diagnosis of mycobacterium fortuitum, he would
sometimes relieve the pressure in her face by inserting tubes
into her face and allowing the sores to drain. Mr. Hayes
described one sore in particular that opened almost down to her
cheek bone and was wide enough to insert a quarter. To relieve
the pain of this sore, Dr. Krause hospitalized Mrs. Hayes and
inserted a tube through the hole and out through the back of Mrs.
Hayes's ear to allow the sore to drain. The jurors observed a
photograph of this particular sore, along with several other
photographs depicting Mrs. Hayes's condition at different times
over the past several years.

In June 2001, the Hayes traveled to the Mayo Clinic, in
Rochester, Minnesota, where they consulted with many specialists.
One of the specialists suggested that Mrs. Hayes had caused these
sores through self-mutilation. Notably, one specialist, whom Dr.
Krause later confirmed was the infectious disease specialist,
opined that the sores looked like some kind of
mycobacterium.[fn1] (T. 327). The doctors at the Mayo Clinic
could not do a test because Mrs. Hayes was on antibiotics, and it
was Mr. Hayes's understanding that antibiotics mask the presence
of mycobacterium. (T. 237). This understanding was later
corroborated by the plaintiffs' expert witnesses. (See e.g.
Dr. Kirby, T. 327-328; Dr. Huitt T. 372-75).

The Hayes's doctors ultimately discovered mycobacterium
fortuitum in October 2001 during a biopsy taken when Mrs. Hayes
was hospitalized for the quarter-sized sore. Dr. Krause then
referred the Hayes to Dr. Rausch. At that point, the doctors
tested the bacteria for resistance and established that there
were three therapeutic drugs that could work on Mrs. Hayes's
particular strain of mycobacterium fortuitum. Treatment was
started using two of them, Amikacin and Cipro. The Amikacin, a
highly toxic antibiotic, requires intravenous injection; thus
doctors inserted a "portacath" in her chest. Amazingly to the
Hayes, within one week of starting the medications, all the sores
on Mrs. Hayes's face started to close. That was unlike any of the
other antibiotic
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treatments Mrs. Hayes had undergone in the past
years. The treatment lasted approximately forty-three days of
three-hour injections each day. Mr. Hayes would begin the
treatment in the morning before he went to work. The medications
caused severe nausea and lethargy. Mrs. Hayes took Phenergan for
the nausea. It was Mr. Hayes's understanding that Amikacin could
cause deafness, so the doctors tested her hearing regularly. Mr.
Hayes testified that when the doctors noted a loss in hearing,
they took her off of the Amikacin and finished the first round of
antibiotics with Cipro and Rifampin. These were both oral drugs,
taken twice daily. She finished out the first round of
antibiotics and had about a two-month hiatus with no sores.

The sores returned after two months; the Hayes had been told
that this could occur and, indeed, would probably occur. The
doctors told the Hayes that they would know the disease had been
cured when the sores did not return. That had not yet happened by
the time of trial. The Cipro and Rifampin were resumed, in the
spring of 2002, and Mrs. Hayes was treated for another several
months. The wounds again closed as a result of the second round
of treatment. The doctors observed her for a few months and, when
the sores did not return, they took out the portacath.

The sores returned again, but this time after approximately
four or five months. Mr. Hayes took this as progress. But the
disease had not yet been cured. Mrs. Hayes started again on the
Cipro and Rifampin, but this time the sores did not heal,
indicating that the bacteria had become immune to one or both of
these treatments. There was only one medicine left that would be
effective against her bacteria, as revealed in the early
resistance testing: Imipenem (or Pramoxine). She was put on
Pramoxine and Rifampin. Pramoxine was another intravenous drug,
so Mrs. Hayes had to have a pick line inserted in her arm. The
medicine required infusions two times per day for a half-hour.
This antibiotic gave Mrs. Hayes sweats, clamminess, and nausea,
but the nausea wore off after about a half-hour. Prior to trial,
Mrs. Hayes began developing pain in her arm. The doctors did not
detect swelling, which could be evidence of blood clot formation,
but did an ultrasound to be safe. The ultrasound revealed both a
blood clot and a fibrous flap over the pick line, and Mrs. Hayes
was immediately sent into emergency surgery. What the Hayes
believed would be an overnight stay turned into a seven-day
hospital stay. After the surgery, Mrs. Hayes continued the
antibiotic treatment. This was the regimen that Mrs. Hayes was
following at the time of trial.

In addition to the antibiotic treatment, after the
mycobacterium diagnosis, the doctors also treated Mrs. Hayes's
sores with "debridement." Debridement is a medical surgical
procedure in which the doctor would cut out all of the skin that
appeared infected. (T. 236). Also, at a certain point after the
diagnosis, Dr. Krause began to attempt a repair of Mrs. Hayes's
face, to insert something to replace the part of her face that
had been eaten away. Mr. Hayes could not even count the number of
surgeries that his wife underwent, there were so many.

Mr. Hayes then described their lives today:

She is still very lethargic, she's tired most of the
time. Obviously, we have a clock, she's got a
regiment at 6:30 in the morning and she's got a
regiment at 7:30 at night. Our life presently
consists of visiting doctors once a week. She still
does not like the way she looks, so we do not
socialize. We have not vacationed in
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years. We've
cancelled the spring training trip the last few
years. We have not had the Hayes Family Picnic for
the last couple of years. Her arthritis continues to
give her a problem, so if she's down on the floor
with my grandson, I often find myself helping her get
up. I do the shopping, I do most of the stuff that
needs to be done. While she's gotten better
considerably from this, we still have a way to
go. . . . [Our life is] completely the opposite. My
wife, who was as outgoing a person as I've ever seen,
who loved to socialize, who loved to entertain, who
was the life of the party, is now a recluse. She
lives in our house. Other than my son's wedding and
just recently our granddaughter's christening, she is
not out of the house other than doctor visits. And
what we try to do is we take my grandson with us on
the doctor visits because we stop at the Cherry Hill
Mall on the way back from the doctors, because that's
her one time out of the house. So, we spend an hour
or two in the Cherry Hill Mall. I'm sorry. That's our
social life.

(T. 256:2-257:2). The testimony of the Hayes's friends, Mr.
Anderson and Ms. Manto, added that Mr. Hayes should be canonized
for the way that he has supported and cared for Mrs. Hayes
throughout this ordeal. (See e.g. T. 421:12).

The plaintiffs' pictoral presentation was no less consistent or
compelling. It is said that a picture is worth a thousand words;
it would be hard to articulate words sufficient to replace the
force of the pictures entered into evidence in this case. The
Hayes's and their friends' description of the Hayes's hermit-like
retreat from society was quite credible, upon reviewing these
pictures. The oozing, large sores reinforced the witnesses's
testimony that Mrs. Hayes's appearance was aesthetically
unpleasant and that forays away from the home could possibly put
Mrs. Hayes in danger of additional infection from wind or rain or
sun exposure entering through the wounds. Among the pictures, the
plaintiffs submitted as an exhibit a picture of the quarter-size
wound that fully corroborated both Mr. and Mrs. Hayes's
description of the physical pain that Mrs. Hayes endured, as well
as its vast difference from any kind of pimple. Mrs. Hayes
herself also provided evidence of the ordeal she has endured and
continues to endure. The jurors could observe first-hand the
ravages of the disease, which Mrs. Hayes may never defeat.

That testimony became the foundation of the plaintiffs' case,
and no fact or expert witness refuted any of the above
information. Even the defendant's experts did not refute the
above information; rather, they merely attempted to sever the tie
between Mrs. Hayes's complaints beginning just after the surgery
and the actual diagnosis of mycobacterium fortuitum in October
2001. The balance of the plaintiffs' witnesses verified,
expanded, and corroborated Mr. Hayes's testimony.

Mary Hayes took the stand and testified very compellingly and
convincingly about the development of her disease, including the
pain that she has experienced since the surgery, her diagnosis
and treatment, and the change her life has undergone since the
surgery. Among the facts highlighted by her testimony concerned
the plaintiffs' informed consent claim. Mrs. Hayes testified that
she initially consulted Dr. Cha to fix sagging in her neck. She
did not want anything else done. But Dr. Cha advocated for more
surgery — in fact, the entire face lift along with more work on
her eyes. She testified that he convinced her to get the full
face lift. She further testified that he did not discuss the risk
of infection, nor did the booklets explaining the procedure
mention infection as a risk of the surgery.
West Page 483
Following the
surgery, Mrs. Hayes testified that she visited Dr. Cha several
times, including two or three visits after the October 31 visit.
She complained about the swelling and redness at those visits,
but Dr. Cha told her that such swelling and redness was usual and
it would go down over time. She further confirmed that Dr. Cha
had sold her over-the-counter creams for the swelling.

Dr. Krause also corroborated and elaborated upon Mr. Hayes's
foundation. Dr. Krause testified that he began seeing Mrs. Hayes
on August 9, 1999. At that time, she had multiple scars on her
chin, forehead, and neck, and open abscesses in some of these
areas. (T. 271:4-13). Dr. Krause testified that he had never seen
anything like it before. (T. 271:21-22). Initially, he thought
that she might have been injected with liquid silicon, had
trouble with the silicon, and began to develop granulomas, but he
had only seen such infections in pictures. (T. 272:1-4). His
first course of treatment involved applying Cordran tape, a
cortisone tape that comes in a roll, to the sore areas of her
face. That "seemed to give her some relief." (T. 272:9). Thus, he
then "embarked on a course of injecting her face with cortisone
itself," mixed with novacaine to relieve the pain of the shot,
approximately every two weeks. (T. 272:9-13, 273:18). These
injections continued from "1999 well into 2001." (T. 272:15).
Because Mrs. Hayes complained of intense pain during the
injections, Dr. Krause gave her intravenous sedation and pain
relief during each session. (T. 273:19-22). Dr. Krause further
testified that although she seemed to get some relief, Dr. Krause
did not feel that he was treating the cause of the problem. Thus,
on several occasions he took a biopsy of her skin. Those early
biopsies showed that there was a foreign body, but not what it
was.

Dr. Krause also pursued other avenues for discovering the
source of the infection, including sending the tissue to
colleagues and to institutions. Dr. Krause arranged the Mayo
Clinic visit in 2001 because he had been told that a specialist
practiced there who had the ability to chemically analyze whether
or not silicon was present in Mrs. Hayes's face. (T. 275). The
Mayo Clinic was disappointing not only for Mr. and Mrs. Hayes,
but also for Dr. Krause. Just as Mr. Hayes had earlier testified,
Dr. Krause also testified that one of the doctors who saw Mrs.
Hayes accused her of self-mutilation. Although Dr. Krause could
not see how someone could cause the types of sores that he had
been seeing, but also not wanting to dismiss a specialist's
diagnosis, Dr. Krause testified that he had a frank discussion
with the Hayes about self-mutilation. They emphatically denied it
to him and he continued to look for alternatives, specifically
the possibility that it was a bacterial infection. Dr. Krause
testified that he took Mrs. Hayes to get a biopsy and some
cultures. This time, the culture was retained and monitored by
the lab for two full weeks. The immediate report did not show any
organism, but a few days later, something began to grow. A few
days after that, the lab reported that a mycobacterium had grown
out in the culture. And finally, after two full weeks, the lab
confirmed that it was mycobacterium fortuitum. (T. 276).

Dr. Krause testified that, at the time of trial, his prognosis
was "guarded": "I think I have to be sure that her disease is
quiet for a significantly long period of time before I can try to
do anything to help her further with her facial appearance. What
I'm hoping is that eventually I can go in and operate on her and
add some tissue in the form of either her own tissue or some
other tissue to restore the depressions and scars and things like
that all over her face." (T. 279:24-280:5). The scarring occurs
West Page 484
because "[t]his particular bacteria tunnels through the cutaneous
tissue, that's the fat between the skin and the muscle, and it
destroys that tissue. And then the skin sinks in and compresses
down against the muscle and results in a scar." (T. 280:7-10).

Dr. Krause opined about Dr. Cha and his adherence to the
standard of care required for plastic surgical procedures. Dr.
Krause confirmed unequivocally that, to a reasonable degree of
medical certainty, Dr. Cha had deviated from the required
standard of care and that the deviation caused Mrs. Hayes to
contract the bacterial infection. (T. 280:14-23). Dr. Krause
indicated that Dr. Cha had not only done a "standard face-lift"
but also performed some liposuction, and that "the bacteria was
most likely introduced by the liposuction instruments" and that
"they were probably not properly sterilized ahead of time." (T.
281:1-16). This testimony was reinforced by the Hayes's prior
testimony that Dr. Cha had performed an "emergency liposuction"
just prior to Mrs. Hayes's scheduled surgery, and by the multiple
subsequent witnesses who testified, including Dr. Cha himself,
that Dr. Cha did not follow required sterilization procedures.
These procedures include: (i) wrapping the instruments in tape
that is heat-sensitized to change color if the sterilization
process was properly completed; (ii) utilizing indicator strips
that are placed within the Autoclave[fn2] itself; and (iii)
sending certain material to outside facilities once a month to
assess the Autoclave's effectiveness. Dr. Krause himself had
inspected Dr. Cha's ambulatory surgical facility and the
Autoclave, in the early 1990's as an inspector for an
organization called the "quad A PSF, [the American Association of
Ambulatory Office Facilities for Plastic Surgery] an organization
that inspects ambulatory plastic surgery facilities." (T.
282:19-20, 304:20-23). At the time of Dr. Krause's inspection in
the early 1990's, the appropriate sterilization records were
present. At the time of Mrs. Hayes's operation, the appropriate
records were no longer present, the testing was no longer
regularly performed.

Dr. Krause opined that the liposuction instruments — canulas —
were the most likely source of the infection because they require
a difficult and time-consuming sterilization process including
scrubbing the instruments with special brushes and then running
the instruments through the Autoclave. Moreover, Dr. Krause
indicated that he had seen reports in medical literature that
infections were being caused by these liposuction canulas, and
the infections were of the mycobacterium variety. (T. 283).

Dr. Kirby, an expert in microbiology and pathology, who did a
two-year research fellowship at Tufts Medical School studying
bacteria and bacterial pathogens, further corroborated the
earlier testimony. (T. 310). Dr. Kirby testified that he
personally operates an Autoclave in his research laboratory to
sterilize his equipment. (T. 311). He reiterated the
sterilization process outlined by Dr. Krause and then opined that
to a reasonable degree of medical certainty that the disease was
caused either by a failure in the sterilization practices or in
the Autoclave itself. (T. 311-314). Dr. Kirby confirmed the
West Page 485
plaintiffs' theory by summarizing the early development of Mrs.
Hayes's illness, based on his review of the depositions and
medical records. (T. 315:18-25). Dr. Kirby further confirmed the
plaintiffs' witnesses's testimony that there was no evidence that
Mrs. Hayes had received injections from her doctors between the
time of her face-lift surgery by Dr. Cha and the time she treated
with Dr. Abraham in September 1997. (T. 316).

Dr. Kirby described the pathology of mycobacterium fortuitum:

Yeah. Well, they call this organism rapidly growing
mycobacterium, but actually there is — it's not that
rapid in the grand scheme of things, it neither grows
rapidly nor does it cause a very rapid infection.
When we often think of infection, we think of
something like a typical surgical infection, you
become symptomatic within days of your surgery and it
becomes very acute, it brings you to the doctor right
away and you get treated. Rapidly growing
microbacterium are . . . It's rapid comparing to
slow-growing microbacterium. . . . Those would be
things like the bacteria that causes tuberculosis,
that's call microbacterium tuberculosis. There are a
number of other slow-growing microbacterium, too. I
guess there is mycobacterium lepri, which can[`t]
even be grown in the laboratory, so that's a very
slow-growing microbacterium. . . . [U]nlike a typical
bacterial infection, rapidly-growing microbacterium
can take quite some time before symptoms first
appeared. And so I think they — in reviewing the
literature, they say the median time is about one
month after surgery, for example, when the organism
was introduced, but it can actually be — or after
some sort of trauma was introduced, the organism, but
it can actually be quite long. . . . I've seen
reports of two years, three years. There is actually
even a report of someone who I think stepped on a
toothpick and it lodged in his foot and I think about
15 years later developed mycobacterium fortuitum
infection. And so it can be — it's a very unusual
type of infection and it can be quite a long time
between the initiating event and when the symptoms
occur. And as you might imagine, it could be very
confusing for doctors to try to sort out. You know,
they're not necessarily thinking about this organism
in relationship to some of that that a patient might
have had.

(T. 317:11-319:6). As far as the clinical course of these
mycobacterial infections, Dr. Kirby testified that "they tend to
be chronic. Patients will, once their symptoms first start to
appear, well, there is a very lucky small minority who just get
better, but unfortunately, most of the people develop very
chronic sores, they'll develop ulcers, abscesses, these lesions
which kind of come and go, but basically they'll — infection will
essentially persist indefinitely unless some sort of therapy is
given. So, it's a chronic progressive infection." (T. 319:9-17).
As for treatment, Dr. Kirby testified that "[t]he treatment would
be antibiotics. And one of the significant things about treating
these organisms is that they require prolonged treatment, courses
of six months of therapy. And that's what Mrs. Hayes had, I think
she's had an initial six month course of therapy. And sometimes
even with what we think is adequate therapy, these infections
aren't completely cured and patients may have to be treated
again. And it might — therapy alone might not be sufficient and
especially with infections that are sort of widespread that
involve tissue deeply, you often need to do surgery too in order
to help get rid of the infection. It's a very difficult infection
to deal with." (T. 319:19-320:5). Dr. Kirby also testified about
the origin of the infection in Mrs. Hayes:
West Page 486

Q. Is there any significance to the fact that these
sores, ulcers are only located on her face?

A. There is significance to that. In terms of — in
reviewing the case matter and trying to figure out
how this infection came to be, I made note of the
fact that she's (sic) actually has lesions which have
developed on many areas of her face, so it's not just
a lesion on her right cheek or a lesion on her left
cheek, she has had lesions on both cheeks, under her
jawline, on multiple areas of her face. And to me,
that suggests that there has to be some sort of
unifying event where this organism was introduced all
at once into multiple locations. And my conclusion,
to a reasonable degree of medical certainty, is that
unifying event, based upon the time of the
development of these lesions, was her original
plastic surgery.

(T. 320:6-20).

Dr. Kirby further discussed the pathology of Mrs. Hayes's
disease, as revealed by her medical records at different points.
He noted that her biopsy in 1998 revealed chronic inflammation
and that this would be typical in a mycobacterial infection, but
that the acid-fast stain that would have revealed the
mycobacterial infection itself was not done at this time. (T.
322-323). He further noted that the biopsy in 1999 of certain of
her neck lymph nodes revealed hyperplasia, which is consistent
with an infection and consistent with a mycobacterial infection.
(T. 323-324). The biopsy further revealed granulomas composed of
histiosities, some of which were multi-nucleated, again
consistent with mycobacterial infection. (T. 325). But though
these bodily defenses could bespeak a mycobacterial infection,
which both sides' experts assert is a very rare occurrence, the
doctors initially were focused on the more common possibility,
the foreign-body infection. (See e.g. T. 326-327). Moreover,
it is very difficult to find mycobacterium, even if you are
looking for it: it only shows up in 30 percent of the properly
performed cultures, the cultures must be specifically for
mycobacterium as they are held much longer than regular bacterial
cultures, and if the patient is on antibiotic medication then the
chances of discovery are greatly decreased. (See e.g. T.
329-332).

During direct testimony, Dr. Kirby also refuted the defendant's
experts' opinions based on their reports. For example, Dr. Kirby
disagreed with Dr. Sanchez's conclusion that the pathology was
not consistent with mycobacterial infection. (T. 332-334). Dr.
Sanchez opined in his report, and later testified at trial, that
the descriptions of the pathology findings, which include foreign
body, giant cells, fibrosis and chronic inflammation, are not
features of mycobacterium. Dr. Kirby specifically disagreed with
this conclusion noting that in his experience, the "foreign body
giant cells are found almost always with these types of
infections." (T. 334:15-20). Dr. Kirby further opined that a
granuloma-type response would be primary evidence of a
mycobacterial infection and the more advanced polymorphonuclear
leukocytes would not have to be present for a mycobacterium
fortuitum infection to exist. (T. 333).

Finally, the plaintiffs presented Dr. Huitt, Director of the
Adult Infectious Disease Care Unit at the National Jewish Medical
and Research Center, board-certified in internal medicine and
infectious disease. (T. 368). The facility in which she practices
is a national and international referral center for the treatment
of mycobacterial infections, along with several other disease
processes. Her particular specialty is in mycobacteria and
infectious diseases, the area in which she practices and teaches,
and the center sees roughly
West Page 487
between five hundred and a thousand
patients per year with mycobacterial infections. Ninety-seven
percent of the patients she personally sees clinically have
mycobacterial infections. (T. 369). Dr. Rausch contacted the
National Jewish Medical and Research Center on its consult line
initially, and Dr. Huitt advised Dr. Rausch on the course of
treatment for Mrs. Hayes. (T. 371).

Dr. Huitt testified that Mrs. Hayes's medical history is
"extremely characteristic" of mycobacterial infection. (T. 372).
For example, the characteristic time course for the pain and
redness to develop into a sore and then break open is a few weeks
to a few months. That is precisely the course described by Mrs.
Hayes. (T. 372). Dr. Huitt further testified that a variety of
commonly used antibiotics essentially put the bacteria to sleep,
euphemistically speaking. (T. 374-375). Steroid injections can
cause two polar reactions: either the infection will quiet down
and the pain will subside for a time or the infection will flare
up and the pain will worsen. (T. 375). Dr. Huitt agreed with the
other witnesses that the pathology reports of the samples are
consistent with mycobacterial infection. (T. 376).

Dr. Huitt also discussed the difficulty in diagnosing this
disease and, in particular, the delay that often accompanies the
diagnosis of the disease. Dr. Huitt even went so far as to opine
that she would rather have tuberculosis because of the
difficulties in not just diagnosing, but also treating the
mycobacterium fortiutum. (T. 376). As physicians, they are taught
to look for the common infections first — "not the zebras" as it
were — and mycobacterium fortuitum is a zebra. (T. 376-377). Dr.
Huitt further testified that this bacteria has an association
with surgery. (T. 377). Dr. Huitt also opined that to more than a
reasonable degree of medical certainty Mrs. Hayes was infected
during the surgery: "In my review of the records, it seems
extremely likely, highly probable that this infection occurred
during the surgical procedure because of the manifest — the
appearance of the characteristic swelling and redness and pain on
the skin within several weeks to a couple of months after the
surgical procedure." (T. 377:15-20).

Dr. Huitt further opined that to a reasonable degree of medical
certainty Dr. Cha deviated from accepted medical practice in his
care and treatment of Mrs. Hayes. (T. 377-378). First, there was
a deviation in the doctor's common practice that he only perform
one surgery a day, and instead he performed two. Second, no
proper record-keeping existed for the sterilization protocol.
Third, Dr. Cha did not prepare a post-operative report of the
surgery. The standard of care requires that a "specific operative
report indicating what type of surgical procedure was done, where
were the surgical incisions performed, what instruments were
used, how was the — how was the incision or the — the incision,
how was it closed, and what with." (T. 378). "Finally, the
records allude to the patient complaining of a lump in the neck
and a swelling of the earlobe and pain in the earlobe and this
was not followed up. And within the time period that this was
seen in this type of operative procedure, it certainly is
standard of care to follow up much sooner than a month's time
when a patient is reporting some type of swelling and pain in an
area after the surgery." (T. 379:2-10). This would indicate an
infectious process beginning. (Id.).

As an alternative to this detailed and corroborated medical and
personal chronology, the defendant offered the theory that the
time was too attenuated for the surgery to have been the source.
Dr. Cha's testimony, however, did not aid the
West Page 488
defendant in either
the informed consent case or the medical malpractice case. By his
own admission, Dr. Cha did not inform Mrs. Hayes of the risk of
infection. Counsel for the plaintiff read into the record the
following testimony from Dr. Cha's deposition, that Dr. Cha did
not later dispute:

Q: But what risks and complications and consequences
did you tell this patient that she could, you know,
experience as a result of this surgery? A: Well, that
is written on the consultation note the day of
surgery. Q: Okay. So, you read the note in. So, it is
your testimony that the only risks that she was
advised of are those that are documented in . . . the
note of August 22, 1995 . . .? A: Yes.

(T. 354:11-20). The risks and complications and consequences that
Dr. Cha discussed with Mrs. Hayes are documented in the note on
the day of the surgery. Dr. Cha's notes discussing the risks
read: "she will get numbness on cheeks and ear that will take
several months to go away. If facial nerve is severed, she will
get crooked face. She could get pulled, I guess it's lower lid,
if too much skin taken out. She will get back to us." (T.
423:18-22). At trial, Dr. Cha confirmed that testimony. (T.
513:11-514:20). As for his sterilization procedures, Dr. Cha
confirmed that he did not keep regular records of his autoclaving
(T. 522) and that he did not use indicator strips on the
instruments every time he autoclaved an instrument (T. 524).

The defendants offered three expert witnesses. The first, Dr.
Sanchez, was board-certified in anatomical and clinical pathology
with a specialty of cellular pathology. (T. 547-548). From 1975
to 2001 he lectured at NYU School of Medicine on mycobacterial
disease and granulomatosis. (T. 549). After reviewing the medical
reports, pathology report, and pathology slides, Dr. Sanchez
opined that "the mycobacterial changes were present in the
biopsies from 2001, but none in any of the biopsies before that
date." (T. 552). Dr. Sanchez did not go farther than this on
direct examination. This opinion does not negate the plaintiffs'
testimony that the initial biopsies did not have the proper
follow-up to find mycobacterial disease.

Dr. Sanchez further commented on the pathology reports. He
indicated that granulomas are present when mycobacteria are
present (T. 554), that antibiotics will not destroy the
granulomas, but may cloak or destroy the bacteria, and that there
were no granulomas present on the slides. (T. 555). Dr. Sanchez
opined that as of October 2001, the granulomas were present and
that meant that mycobacterium fortuitum was present, but that the
prior slides showed only inflammation and foreign body infection
that were not indicative of mycobacterium fortuitum. (T.
557-562). Despite this testimony, Dr. Sanchez confirmed that the
slides in 1999 showed lymph granulomas and scar tissue, but he
opined that this did not indicate mycobacterium fortuitum. (T.
562-63). He noted that the medical records show in 1998 a
squamous acanthosis in the scar tissue from the abscesses, but,
he opined, this did not indicate mycobacterium fortuitum. (T.
563). On cross-examination, Dr. Sanchez agreed that there were
only two cultures done. He conceded that the first culture, done
in the summer of 2001, was thrown out in two days, and that two
days is not sufficient for mycobacterium to grow in a culture.
(T. 570). Sanchez's opinion is that Mrs. Hayes contracted the
mycobacterial infection between August and October of 2001. (T.
571). Dr. Sanchez did not offer a diagnosis for what the
underlying problem was prior to October 2001 when the
mycobacteria was found, nor did he offer an explanation for Mrs.
Hayes's problems prior to that time.
West Page 489

Dr. Burstin, board-certified in infectious disease and internal
medicine, trained at NYU Medical School, trained in infectious
disease at Harvard Medical School and Peter Brigham Hospital. (T.
602). Two of his publications are on mycobacterium tuberculosis.
(T. 604). While he was a practicing physician, he saw on average
four to five cases of "mycobacterial bacterial infections" a
year. (T. 605). However, all but one of these patients had
pulmonary mycobacterial infections; Dr. Burstin had only seen one
patient in his career with a skin mycobacterial infection. (T.
634).

Dr. Burstin opined that mycobacterium tuberculosis, which
causes pulmonary infection, is the most common mycobacterium in
this part of the world; the other types are "very rare." (T.
605). "Mycobacterium fortuitum is seen almost everywhere; it's in
water, it's in soil, and it very rarely causes infection. . . .
[T]he infections that it does cause are of two types, pulmonary
infection, which is unrelated to this case, and usually is in
patients who are immune-compromised, and skin infections often
after surgery." (T. 606:20-607:1). Thus, Dr. Burstin confirmed
the plaintiffs' experts' testimony that mycobacterium fortuitum
occurs most often when there has been a surgical procedure. Dr.
Burstin highlighted the following about mycobacterium fortuitum
infection:

But one of the things that's very important to know
in the case where it presents later, and it has
occurred after certain surgical proceedings, it
starts as a lump underneath the skin. And if you look
at the timing to the event where it presents, so this
is taking a look at all the studies, and I can give
you a list and I'll give some examples, it occurs
always within three months in 99 percent of the
patients. . . . So, these patients go to the doctor,
usually with one or two little lumps under the skin
within three months and mostly within two months of
the surgical procedure. So on the time line, you have
to remember lump under the skin, two months, becomes
an abscess and drains. Then if nothing is done, it
may spread a little bit locally right where the
surgery was. So that the timing is very important.

(T. 607:23-608:14). This description mirrors the plaintiffs' and
their friends' description of the development of Mrs. Hayes's
disease.

Dr. Burstin opined that the most likely source of Mrs. Hayes's
infection was from the biopsy performed by Dr. Krause in July
2001. (T. 626). He notes that three months after that biopsy,
mycobacterium fortuitum was found in the October 2001 biopsy. Dr.
Burstin suggested that nothing was known about the preparations
for the biopsy in July 2001. (T. 614; 615). Up until that point,
all the studies were "non-specific" and all indications were that
the sores were merely acne from Mrs. Hayes's hormonal changes.
(T. 614-615; 624-26). Dr. Burstin agreed with Dr. Huitt that
during the time that Mrs. Hayes was on antibiotic therapy, the
disease would have been partially controlled. But, Dr. Burstin
maintained that the earlier diagnoses of acne and rosacea were
accurate and that in 2001 the mycobacterium fortuitum was
introduced during the procedures performed on Mrs. Hayes's face.
(T. 624-26). This testimony does not take into account or explain
the multiple diagnoses that did not include acne and rosacea in
that earlier time period, including the Mayo Clinic infectious
disease specialist who opined that it may be a mycobacterial
infection (T. 633), or the acute and chronic inflammation
diagnoses.

On cross-examination, Dr. Burstin agreed that the first lesion
may not have drained by the end of the first three months, and an
open sore may not have
West Page 490
formed at that time. The disease could
have stayed as abscesses under the skin. (T. 627-28).

Dr. Burstin opined about sterilization techniques and, upon
questioning from plaintiffs' counsel, he indicated that it would
be a deviation of the standard of care if a practice did not use
the strips every time they cleaned instruments. He further opined
that although there was a debate about using the strips in the
seventies and eighties, the debate has been resolved and the
strips are to be used every time. (T. 640). Thus, Dr. Burstin
testified that, in his opinion, Dr. Cha's practices deviated from
the standard of care for plastic surgery.

Finally, the defendant offered Dr. D'Amico, trained in internal
medicine with a specialization in plastic and reconstructive
surgery. Dr. D'Amico has been in private practice for twenty
years with the majority of his practice focused on facial plastic
and reconstructive surgery. He is board-certified by the American
Society of Plastic Surgeons, where he sits on the board of
trustees, and is also a member of the faculty at Mount Sinai
Medical Center in New York City. (T. 657). Dr. D'Amico spoke
about the intricacies of being an accredited surgical facility.
(T. 664). He opined that if there was a problem with the
Autoclave and its sterilization efficacy, many patients would be
contracting infections. (T. 668-669). Dr. D'Amico also opined
that at the time of the surgery, in the mid-nineties, the
standard for sterilizing instruments in an Autoclave included
keeping a log of Autoclave usage, using an indicator each time an
instrument is sterilized, and sending out spore samples once a
month. (T. 681-82). Thus, Dr. D'Amico's testimony also confirmed
that Dr. Cha's practices did not meet the standard of care.

Dr. D'Amico provided a detailed explanation of the typical
face-lift surgery (T. 669-673). Among his comments, Dr. D'Amico
opined that lumpiness, as noted in Dr. Cha's October 1, 1995
office visit note, is common following such surgery. (T. 673).
Dr. D'Amico opined that the mycobacteria could not skip from the
cheek or the chin to the forehead. (T. 675). But, he explained
that Dr. Cha could have performed his surgery of the fat removal
around the eye either by making an incision under the eye or by
entering through the eyelid. Dr. D'Amico admitted that he could
not tell from Dr. Cha's post-operative notes which method he
chose because the notes omitted such details. (T. 678). Moreover,
Dr. D'Amico's knowledge of the bacteria was from research that he
conducted from medical literature after he was retained to be an
expert in this case. Prior to being retained, he had never seen a
mycobacterial infection, nor were any of his colleagues to whom
he spoke familiar with the infection. (T. 684).

Finally, Dr. D'Amico confirmed that the medical literature that
he reviewed indicated that the pathology of mycobacterium
fortuitum may either be granulomatous tissue or chronic
inflammation. (T. 687). Dr. D'Amico noted that often surgeons
used cortisone injections "to treat an inflammatory process to
try to get the inflammation to quiet down." (T. 676:19-20). And
Dr. D'Amico admitted that Mrs. Hayes had been given cortisone
injections. Although defense counsel's point was to highlight
that the cortisone itself could contain the bacteria, Dr.
D'Amico's comments support the plaintiffs' theory that an
inflammatory process was already present when the shots began.

As for the informed consent claim, Dr. D'Amico admitted that
while his consent form does not specifically mention infection as
a risk, it is one of the risks that he discusses with his
patients. (T. 679). He further testified that he considers it his
West Page 491
duty to explain such risks of infection to his patients. (T.
681). Dr. Cha's own testimony confirms that he did not discuss
the risks of infection with Mrs. Hayes. Thus, Dr. D'Amico's
testimony provides further support for the plaintiffs' theory
that Dr. Cha breached the standard of care for informed consent.

Following the testimony, the jury returned a verdict for the
plaintiffs on both claims and awarded Mrs. Hayes $15 million and
Mr. Hayes $5 million.

In addition to the defendant's motion for a new trial, the
plaintiffs filed a motion to alter or amend the judgment pursuant
to Fed.R.Civ.P. 59(e) and New Jersey Court Rule 4:42-11(b), by
adding $3,672,190 to the judgment for prejudgment interest. The
defendant opposes the motion asserting that the state rule
allowing prejudgment interest does not apply in federal court and
that there is no federal rule providing for prejudgment interest.
The defendant further maintains that 28 U.S.C. § 1961 governs, as
it addresses the issue of interest while not providing for
prejudgment interest. In the alternative, the defendant asserts
that even should the court apply the state rule, no prejudgment
interest should be assessed as this case falls within the realm
of "exceptional cases" in which no such interest accrues. The
defendant further asserts that the plaintiffs were the cause of
the delay in bringing the case to trial. The plaintiffs assert
that the state rule does apply, that the defendant has not shown
extraordinary circumstances prohibiting allocation of prejudgment
interest, and that any delay in bringing the action can be
attributed to the defendant.

III. DISCUSSION

A. STANDARD ON A MOTION FOR NEW TRIAL

Federal Rule of Civil Procedure 59 provides in pertinent part:

A new trial may be granted to all or any of the
parties and on all or part of the issues (1) in an
action in which there has been a trial by jury, for
any of the reasons for which new trials have
heretofore been granted in actions at law in the
courts of the United States[.]

Motions for a new trial in diversity cases, long considered to be
within the exclusive purview of federal jurisprudence, see
e.g. Browning-Ferris Industries of Vt., Inc. v. Kelco
Disposal, Inc., 492 U.S. 257 (1989), Lind v. Schenley Indus.,
Inc., 278 F.2d 79, 84 (3d Cir. 1960), Johnson v. Parrish,
827 F.2d 988, 991 (4th Cir. 1987), were pulled into the vortex of the
substantive/procedural dichotomy by the Supreme Court's decision
in Gasperini v. Center for the Humanities, Inc., 518 U.S. 415
(1996). In Gasperini, the Court considered whether both the
trial court and the appellate court should apply a New York state
standard when reviewing the size of jury verdicts on a motion for
a new trial in a diversity case. In New York, prior to
Gasperini, federal common law developed a "shocks the
conscience" standard: "courts would not disturb an award unless
the amount was so exorbitant that it `shocked the conscience of
the court.'" Gasperini, 518 U.S. at 422. State courts applied
the same standard pursuant to state common law until the New York
legislature enacted a statutory standard for judicial review of
jury awards in 1986. Id. at 423. That standard required
appellate courts to determine whether jury awards, upheld by
trial courts, "deviate? materially from what would be reasonable
compensation." Gasperini, 518 U.S. at 423 (citing CPLR §
5501(c)). New York state courts had held that the "deviates
materially" standard requires closer
West Page 492
scrutiny of jury verdicts
than does the "shocks the conscience" standard. 518 U.S. at 424.
And New York state courts had applied that statute to trial
courts, despite the statutory language referring only to
appellate courts. Id. at 425.

The lower court in Gasperini applied the federal common law
"shocks the conscience" test to the jury award upon a Rule 59
motion following trial. The Court of Appeals applied the state
standard, set aside the verdict, and ordered a remittitur and a
new trial if the plaintiff did not accept the remittitur. The
Supreme Court framed the question as one of conflict between the
New York statute setting a standard for review of jury awards by
both the trial and appellate courts and the Seventh Amendment's
"Re-examination Clause" prescribing that "no fact tried by a jury
shall be otherwise re-examined in any Court of the United States,
than according to the rules of the common law." 518 U.S. at 418.
The Court resolved the conflict by holding that "New York's law
controlling compensation awards for excessiveness or inadequacy
can be given effect, without detriment to the Seventh Amednment,
if the review standard set out in [the New York law] is applied
by the federal trial court judge, with appellate control of the
trial court's ruling limited to review for `abuse of
discretion.'" Gasperini, 518 U.S. at 419.

While the holding of Gasperini is not complex to articulate,
placed as it is at the beginning of the opinion, its import is
difficult to discern. The Court spent a considerable portion of
the opinion discussing its conclusion related to the appellate
courts and their application of federal law when reviewing trial
court determinations; however, its discussion relevant to a
district court's review of motions for a new trial in diversity
cases is relegated principally to a few seemingly contradictory
paragraphs and one notable, though conclusory, footnote, none of
which fully illustrate the standard from which the Court's
conclusion was drawn.[fn3]

The Court in Gasperini did not review federal trial courts'
past practice of relying on federal common law when deciding
motions for new trial in diversity cases — a practice that the
Supreme Court appeared to confirm in the 1989 decision
Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal,
Inc., 492 U.S. 257 (1989). In Browning-Ferris, the parties
asked the Court to consider whether an award of punitive damages
in a diversity case was excessive as a matter of federal common
law. The Court rejected that framing of the question and
explained that "[i]n a diversity action, or in any other lawsuit
where state law provides the basis of decision, the propriety of
an award of punitive damages for the conduct in question, and the
factors the jury may consider in determining their amount, are
questions of state law. Federal law, however, will control on
those issues involving the proper review of the jury award by a
federal district court and court of appeals." 492 U.S. at 278-79
(emphasis supplied). The Court then unanimously held: "In
reviewing an award of punitive damages, the role of the district
court is to determine whether the jury's verdict is within the
confines set by state law, and to determine, by reference to
federal standards developed under Rule 59, whether a new trial
or remittitur
West Page 493
should be ordered." 492 U.S. at 279 (emphasis
supplied).[fn4]

This Browning-Ferris rule evolved to allow for a body of
federal common law to develop in the context of motions for new
trial typified by that applied by the trial court in Gasperini.
Several courts since Gasperini have continued to apply the
dictates of Browning-Ferris to motions for a new trial. But, as
Justice Scalia noted in his dissent to Gasperini, the Court
silently overruled that decision with respect to its description
of the role of substantive state law in federal courts' review of
jury awards. Confusingly, the Gasperini Court cites the very
same language from Browning-Ferris to which some courts, see
e.g. Schaefer v. Spider Staging Corp., 275 F.3d 735, 738 (8th
Cir. 2002), have referred for the rule that federal law continues
to govern whether a new trial or remittitur should be ordered.
Gasperini, 518 U.S. at 435. Yet, the Gasperini Court, when
responding to Justice Scalia's remarks that federal law should
continue to apply to motions for a new trial, rejects federal
common law as the rule in such cases:

Justice Scalia finds in Federal Rule of Civil
Procedure 59 a "federal standard" for new trial
motions in "`direct collision'" with, and "`leaving
no room for the operation of,'" a state law like CPLR
§ 5501(c). [518 U.S.] at 2239 (quoting Burlington
Northern R. Co., 480 U.S., at 4-5,
107 S.Ct., at 969). The relevant prescription, Rule 59(a), has
remained unchanged since the adoption of the Federal
Rules by this Court in 1937. 302 U.S. 783. Rule 59(a)
is as encompassing as it is uncontroversial. It is
indeed "Hornbook" law that a most usual ground for a
Rule 59 motion is that "the damages are excessive."
See C. Wright, Law of Federal Courts 676-677 (5th
ed. 1994). Whether damages are excessive for the
claim-in-suit must be governed by some law. And
there is no candidate for that governance other than
the law that gives rise to the claim for relief —
here, the law of New York. See 28 U.S.C. §§ 2072(a)
and (b) ("Supreme Court shall have the power to
prescribe general rules of . . . procedure"; "[s]uch
rules shall not abridge, enlarge or modify any
substantive right"); Browning-Ferris,
492 U.S., at 279, 109 S.Ct., at 2922 ("standard of excessiveness"
is a "matte[r] of state, and not federal, common
law"); see also R. Fallon, D. Meltzer, & D.
Shapiro, Hart and Wechsler's The Federal Courts and
the Federal System 729-730 (4th ed. 1996) (observing
that Court" has continued since [Hanna v. Plumer,
380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965),] to
interpret the federal rules to avoid conflict with
important state regulatory policies," citing Walker
v. Armco Steel Corp., 446 U.S. 740, 100 S.Ct. 1978,
64 L.Ed.2d 659 (1980)).

Gasperini, 518 U.S. at 437 n. 22. In this statement,
particularly as Justice Scalia couched it, the Court seems to
repudiate any application of such federal common law standards as
the "shocks the conscience" standard to diversity cases,
regardless of the substantive nature of the damages law. Viewed
alone, the footnote presents the position that Rule 59 does not
conflict with the Rules Enabling Act's proscription against
abridging, enlarging, or modifying any substantive right, and
that there is not even a candidate for governance of the question
of whether damages
West Page 494
are excessive. Of course, this statement seems
to beg the question of why, then, federal courts had long applied
federal common law standards such as the "shocks the conscience"
standard to motions for new trial in diversity cases.

In the context of the opinion as a whole, however, the
Gasperini Court has taken the inquiry of whether state law or
federal law applies to motions for a new trial in diversity cases
out of the Rules Enabling Act's purview, 28 U.S.C. § 2072, and
placed it squarely within the Erie and Rules Decision
Act[fn5] maelstrom, 28 U.S.C. § 1652.[fn6] At least one
court has so interpreted Gasperini. See Mejias-Quiros v.
Maxxam Property Corp., 108 F.3d 425, 427 n. 1 (1st Cir. 1997).
In Mejias, the court was asked to apply Puerto Rican law to a
motion for a new trial in a medical malpractice case. In a brief
and perfunctory footnote, the court cited a Supreme Court of
Puerto Rico case for the proposition that the damages law in
Puerto Rico does not impose a cap, and thus is not substantive.
Id. ("If local law placed a substantive cap on medical damages,
it would control, [citing Gasperini], but Puerto Rico case law
suggest no such departure from ordinary practice [citing
Gonzalez v. Ponce Cement Corp., 98 P.R.R. 196, 213 (1969)].").
While the simplicity of the First Circuit's approach holds much
appeal — finding that a state standard would apply only if it
imposed an award cap — it does not account for the fact that
Gasperini did not involve a state statute which placed a cap on
damages. Gasperini, 518 U.S. at 428-29. The Court performed a
full Erie/Rules Decision Act analysis to reach its decision.

The RDA, as originally interpreted by Erie, requires that
federal courts apply state substantive law and federal procedural
law. See Gasperini, 518 U.S. at 427. This pithy concept has
generated no end of jurisprudential consternation. See Wright &
Miller, 20 Fed. Prac. & Proc. Deskbook § 62; Gasperini,
518 U.S. at 427 (describing the classification as "a challenging
endeavor"). The Gasperini Court summarized the standard by
reference to the "outcome-determination" test of Guarantee Trust
Co. v. York, 326 U.S. 99 (1945), as tempered by the "twin aims
of Erie," as characterized by Hanna v. Plumer, 380 U.S. 460
(1965):

Guarantee Trust?, an early interpretation of
Erie, propounded an "outcome-determinative" test:
"[D]oes it significantly affect the result of a
litigation for a federal court to disregard a
West Page 495
law of
a State that would be controlling in an action upon
the same claim by the same parties in a State court?"
326 U.S. at 109 ?. Ordering application of a state
statute of limitations to an equity proceeding in
federal court, the Court said in Guarantee Trust:
[W]here a federal court is exercising jurisdiction
solely because of the diversity of citizenship of the
parties, the outcome of the litigation in the federal
court should be substantially the same, so far as
legal rules determine the outcome of a litigation, as
it would be if tried in a State court." Ibid.
(citation omitted). A later pathmarking case,
qualifying Guarantee Trust, explained that the
"outcome-determination" test must not be applied
mechanically to sweep in all manner of variation;
instead, its application must be guided by "the twin
aims of the Erie rule: discouragement of
forum-shopping and avoidance of inequitable
administration of the laws." Hanna v. Plumer,
380 U.S. 460, 468 ? (1965).

Gasperini, 518 U.S. at 427-28. The Court then reformulated the
query Hanna posed as follows, "Would application of the
standard have so important an effect upon the fortunes of one or
both of the litigants that failure to apply it would unfairly
discriminate against citizens of the forum State, or be likely to
cause a plaintiff to choose the federal court?" Gasperini,
518 U.S. at 428 (internal edits omitted). The Court then applied this
reformulated test to the New York statute. The Court noted that
if the state rule included a statutory cap, it would certainly be
substantive, and thus govern. The Court found that even though
the New York statute imposed only a standard of review of jury
awards, that standard "was designed to provide an analogous
control" as a statutory cap.[fn7] The Court reviewed the
legislative history and noted that the New York legislature
enacted the statute to "foster predictability" and to reign in
excessive damages awards. See Gasperini, 518 U.S. at 430-31.
The Court held that the statute's objective was "manifestly
substantive," and concluded that "[j]ust as the Erie principle
precludes a federal court from giving a state-created claim
`longer-life . . . than [the claim] would have had in the state
court,' Ragan [v. Merchants Transfer & Warehouse Co.], 337 U.S.
[530,] 533-34 [(1949)] . . ., so Erie precludes a recovery in
federal court significantly larger than the recovery that would
have been tolerated in state court." 518 U.S. at 430-31.

Following this analysis, the Court reviewed Rule 59's scope
vis-a-vis trial court review. The Court noted that a trial
court's authority to grant a new trial is "large," particularly
in the context of the Seventh Amendment's lack of an expressed
limit on that authority. Gasperini, 518 U.S. at 432-433. The
Court described that authority historically
West Page 496
as including the
power to grant a new trial where it "clearly appears that the
jury ha[s] committed a gross error, or ha[s] acted from improper
motives, or ha[s] given damages excessive in relation to the
person or the injury," or "if the verdict appears to [the judge]
to be against the weight of the evidence." Gasperini,
518 U.S. at 433 (citing Blunt v. Little, 3 F. Cas. 760, 761-62 (C.C.
Mass. 1822, No. 1,578) (Story, J.), and Byrd v. Blue Ridge Rural
Elec. Cooperative, Inc., 356 U.S. 525, 540 (1958) respectively).
The Court stated that the authority includes not only the power
to overturn a verdict for excessiveness but also to order a new
trial "without qualification, or conditioned on the verdict
winner's refusal to agree to a reduction (remittitur)."
Gasperini, 518 U.S. at 433.

In summary, Gasperini parses the trial court's role in
motions for new trial pursuant to Rule 59 by bifurcating the
traditional Rule 59 standard into a "procedural" element and a
"substantive" element. The "procedural" element is that which
provides the breadth of the court's authority, i.e. the
traditional bases for granting a motion for new trial: (1) where
the verdict is against the weight of the evidence, (2) where the
verdict is excessive, (3) where the jury has acted from improper
motives, (4) where the jury has committed a gross error.[fn8]
The "substantive" element is the legal standard by which a court
assesses each of those bases.[fn9] And trial courts perform
the Erie analysis when determining whether the substantive
element of the Rule is governed by federal or state law in any
diversity case. Rule 59 does not run afoul of the Rules Enabling
Act here because, in the Court's final analysis, the traditional
Rule 59 standard only properly includes the procedural element.
The substantive element that courts have developed over time,
e.g. the "shocks the conscience" test, is not, under Gasperini,
formally a part of Rule 59's scope. This formulation of the Rule
59 standard allows for a consistent reading of both
Browning-Ferris and Gasperini.

B. APPLICABLE LAW

The question before the court is then whether New Jersey has a
law (or rule or standard) applicable to any of the bases for a
new trial and, if so, would "application of the standard have so
important an effect upon the fortunes of one or both of the
litigants that failure to apply it would unfairly discriminate
against citizens of the forum State, or be likely to cause a
plaintiff to choose the federal court?" Gasperini,
518 U.S. at 428.

New Jersey Court Rule 4:49-1 governs new trials in New Jersey
and provides in relevant part:
West Page 497

A new trial may be granted to all or any of the
parties and as to all or part of the issues on motion
made to the trial judge. . . . The trial judge shall
grant the motion if, having given due regard to the
opportunity of the jury to pass upon the credibility
of the witnesses, it clearly and convincingly appears
that there was a miscarriage of justice under the
law.

R. 4:49-1(a). In applying that standard, New Jersey courts
"emphasize that a jury verdict should not be disturbed `unless it
constitutes a manifest injustice that shocks the judicial
conscience.'" Mahoney v. Podolnick, 168 N.J. 202, 229 (2001)
(citing Carey v. Lovett, 132 N.J. 44, 66 (1993)). This standard
is very nearly identical to the federal standard which recognizes
that "a new trial should only be granted where `a miscarriage of
justice would result if the verdict were to stand,' the verdict
`cries out to be overturned,' or where the verdict `shocks our
conscience.'" Price v. Delaware Dept. of Correction, 40 F.
Supp.2d 544, 550 (D. Del. 1999) (citing Williamson v.
Consolidated Rail Corp., 926 F.2d 1344, 1353 (3d Cir. 1991)).
Application of the federal standard over the state standard where
the two are identical does not implicate Erie's "twin aims" of
"discouragement of forum-shopping and avoidance of inequitable
administration of the laws," Hanna, 380 U.S. at 468, as
application of a federal standard would not govern the choice of
a forum nor would it affect the outcome of the case, thus
producing inequitable administration of the laws. Gasperini,
518 U.S. at 428. Additionally, unlike the New York statute, New
Jersey Court Rule 4:49-1(a) was not enacted as an "endeavor?
. . . to control compensatory damages for excessiveness."
Gasperini, 518 U.S. at 431 n. 12. The rule does not mention
damages, and is more a general rule acknowledging the authority
of New Jersey courts to order new trials, much like the federal
rule. As the federal and New Jersey rules have similar intent,
and the standards developed under these rules are virtually
identical, this court shall apply the federal standard when
reviewing the jury award, and not displace it with the state
standard.[fn10] Gasperini, 518 U.S. at 429-31;
West Page 498
Browning-Ferris, 492 U.S. at 278-79.

C. NEW TRIAL: VERDICT AGAINST THE WEIGHT OF THE EVIDENCE

The defendant's first argued ground for a new trial is that the
jury's finding of proximate causation both as to the negligence
and the informed consent is against the weight of the evidence.
"Motions for new trial are seldom granted, especially when the
asserted ground is insufficiency of evidence and the subject
matter is not particularly complex and deals with material which
is familiar and simple." Helena Chemical Co. v. Nelson, 2000 WL
1880331 (D.N.J. 2000) (citing Lind v. Schenley Indus., Inc.,
278 F.2d 79, 90-91 (3d Cir. 1960)). "The party challenging the
verdict — in this case [Dr. Cha] — bears a heavy burden of
showing that the verdict is against the weight of the evidence
and that `a miscarriage of justice would result if the verdict
were to stand'" Id. (citing Klein v. Hollings,
992 F.2d 1285, 1290 (3d Cir. 1993)). "[A] new trial should only be granted
where `a miscarriage of justice would result if the verdict were
to stand,' the verdict `cries out to be overturned,' or where the
verdict `shocks our conscience.'" Price v. Delaware Dept. of
Correction, 40 F. Supp.2d 544, 550 (D. Del. 1999) (citing
Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1353 (3d
Cir. 1991)). "[T]he court is permitted to consider the
credibility of witnesses and to weigh the evidence, however the
court must `exercise restraint to avoid usurping the jury's
primary function.'" Blakey v. Continental Airlines, Inc.,
992 F. Supp. 731, 734 (D.N.J. 1998) (citing Hurley v. Atlantic City
Police Dept., 933 F. Supp. 396, 403 (D.N.J. 1996)).

After fully considering the credibility of the witnesses, and
weighing the evidence as described above, the court finds that
the jury's verdict is not against the weight of the evidence
either on the negligence or the informed consent claim. The
defendant's defense, as detailed above, was marked by supposition
and conjecture. The defendant did not present a single
alternative theory, but many possible theories. Moreover, the
defendant's experts agreed with the plaintiff on several
important points, in particular that Dr. Cha failed to fulfill
his duty by informing the plaintiff of the risk of infection and
failed to follow standard sterilization and surgical practices.
Indeed, in this court's estimation, the facts overwhelmingly
supported the plaintiff on all counts and certainly did not shock
the court's conscience.

For example, Dr. Cha attempted to refute the Hayes' and their
friends' descriptions of the lumps, redness, and sores developing
shortly after the surgery by arguing that Mrs. Hayes did not see
many doctors for these complaints between the surgery in
September 1995 and the fall of 1997. The Hayes provided an
explanation for their conduct, and indeed, supplied evidence that
they did see doctors between 1995 and 1997, Dr. Cha among them.
According to the plaintiffs, Dr. Cha observed the lumps and
redness and told them that it was a usual post-operative
experience. The jury was free to reject the defendant's theory.
Dr. Cha further attacked Mrs. Hayes's credibility by arguing that
she exaggerated the problem post-operatively, just as she had
exaggerated the number of dermatologists that she saw between
1995 and 1997. Central to his attacks on Mrs. Hayes's credibility
was the reference in Dr. Glickman's and Dr. Hurley's notes that
Mrs. Hayes had seen ten dermatologists between 1995 and 1997. At
first, the defendant implied that Mrs. Hayes had seen these
doctors and that they had injected her with steroid
West Page 499
solution that
had caused the mycobacterium fortuitum. However, in counsel's
closing, he emphatically asserted that Mrs. Hayes did not see ten
dermatologists during that period, but that she was the kind of
person who exaggerates her facial problems. The conclusion that
the defense urged the jury to draw during closing was that the
plaintiff merely had acne that was brought on by her hormonal
"change in life" and that she was "picky" about her appearance
and so sought medical assistance, that the medical assistance
finally included the injections by Dr. Krause in 1999 through
2001 and that those injections caused the infection. Notably, the
defendant's experts did not particularly support this theme, as
their opinions identified the biopsy in June 2001 as the most
likely cause for Mrs. Hayes's infection, and not the injections
taking place from 1999-2001. Moreover, neither defense counsel's
nor defense experts' explanation addressed the medical problems
that Mrs. Hayes described beginning just after the surgery and
the severe eruptions in her face that were documented in
photographs and in the notes of her treating physicians beginning
in late 1997 and 1998. The jury was free to reject these various
and contradictory theories for the plaintiffs' cohesive theory
fully supported by their experts. The defendant's brief is no
more persuasive, relying, as it does, solely on counsel's
truncated version of defendant's expert testimony. The
defendant's brief includes no analysis of the plaintiffs' factual
and expert evidence. None of the defendant's explanations provide
sufficient basis to reject the jury's determination, which this
court finds was fully supported by the evidence.[fn11]

As for the informed consent case, the defendant urges the court
to adopt the position that "it is common knowledge that an
infection is a risk of every surgical procedure . . . [and] the
jury would have to find that every facelift, a procedure
performed countless times each day throughout the United States,
would be declined by any reasonable person to whom the risks were
explained." (Def.'s Br. at 18). The defendant misunderstands the
legal standard for informed consent.

In New Jersey, informed consent "is essentially a negligence
concept, predicated on the duty of a physician to disclose to a
patient such information as will enable the patient to make an
evaluation of the nature of the treatment and of any attendant
substantial risks, as well as of available options in the form of
alternative therapies." Largey v. Rothman, 110 N.J. 204, 208
(1988) (per curiam). The cause of action sounds fundamentally on
"a patient's right of self-determination." Id. at 214. Thus, in
Largey, the New Jersey Supreme Court adopted the "prudent
patient" standard of informed consent as conceived in Canterbury
v. Spence, 464 F.2d 772 (D.C. Cir. 1972), and explained it in
the following way:

The Canterbury court announced a duty on the part
of a physician to "warn of the dangers lurking in the
proposed treatment" and to "impart information [that]
the patient has every right to expect," as well as a
duty of "reasonable disclosure of the choices with
respect to proposed therapy and the dangers
inherently and potentially involved." Id.
West Page 500
at 782.
The court held that the scope of the duty to disclose
must be measured by the patient's need, and that need
is the information material to the decision. Thus the
test for determining whether a particular peril must
be divulged is its materiality to the patient's
decision: all risks potentially affecting the
decision must be unmasked. And to safeguard the
patient's interest in achieving his own determination
on treatment, the law must itself set the standard
for adequate disclosure. [Id. at 786-87 (footnotes
omitted).] The breadth of the disclosure of the risks
legally to be required is measured, under
Canterbury, by a standard whose scope is "not
subjective as to either the physician or the
patient," id. at 787; rather," it remains
objective with due regard for the patient's
informational needs and with suitable leeway for the
physician's situation." Ibid. (emphasis added [by
Largey court]). A risk would be deemed "material"
when a reasonable patient, in what the physician
knows or should know to be the patient's position,
would be "likely to attach significance to the risk
or cluster of risks" in deciding whether to forego
the proposed therapy or to submit to it. Ibid.

Largey, 110 N.J. at 211-212. As to proximate cause, the court
also adopted the Canterbury approach, stating that "[u]nder the
`prudent patient' standard `causation must also be shown: i.e.,
that the prudent person in the patient's position would have
decided differently if adequately informed.'" Largey,
110 N.J. at 215 (citing Canterbury, 464 F.2d at 791). The court adopted
the "objective" test for this proximate causation standard:

"Better it is, we believe, to resolve the causality
issue on an objective basis: in terms of what a
prudent person in the patient's position would have
decided if suitably informed of all perils bearing
significance. If adequate disclosure could reasonably
be expected to have caused that person to decline the
treatment because of the revelation of the kind of
risk or danger that resulted in harm, causation is
shown, but otherwise not. The patient's testimony is
relevant on that score of course but it would not
threaten to dominate the findings. And since that
testimony would probably be appraised congruently
with the factfinder's belief in its reasonableness,
the case for a wholly objective standard for passing
on causation is strengthened. Such a standard would
in any event ease the fact-finding process and better
assure the truth as its product."

Largey, 110 N.J. at 510-11 (citing Canterbury,
464 F.2d at 791).

The defendant urges this court to find that the mere fact that
a risk is a matter of "common knowledge" vitiates any informed
consent claim because no person could then reasonably claim that
they would not have undergone the surgery as everyone who knows
of the risk, undergoes the surgery. This turns the standard on
its head. The notion of informed consent presupposes that while
there is a large group of persons who undergo surgical procedures
fully aware of the principal or "material" risks, there is
another set of persons who, when informed of these principal
risks, would reject the treatment. See Largey,
110 N.J. 211-212. Informed consent exists as a remedial measure to protect
that set of persons who might decline treatment, despite its
benefits and the vast number of other persons who successfully
complete the treatment. The question for the jury in each case is
whether the plaintiff falls within the subset of reasonable
people who decline treatment after being informed of the risks.
The defendant's fashioning of
West Page 501
the claim, unsupported by legal
authority, would deny the existence of such a subset of
reasonable people simply because the particular risk in question
is a well-known risk. But the notion of self-determination allows
for reasonable people to differ regarding what is best for their
bodies. See Largey, 110 N.J. at 505-506 ("Every human being
of adult years and sound mind has a right to determine what shall
be done with his own body" (quoting Justice Cardozo)). That
certain reasonable people agree to treatment despite risks does
not preclude other reasonable people from declining such
treatment. This is particularly so in a case such as this where
the surgery in question is elective and, even more, cosmetic.

The defendant's alternative contention that because Mrs. Hayes
did not herself testify that she would not have undergone the
surgery had she known of the risk again misstates the law. The
Largey court specifically rejected a subjective standard for
proximate causation in an informed consent action. Again adopting
the Canterbury reasoning, the court opined:

The shortcoming of this approach, according to
Canterbury, is that "it places the physician in
jeopardy of the patient's hindsight and bitterness.
It places the factfinder in the position of deciding
whether a speculative answer to a hypothetical
question is to be credited. It calls for a subjective
determination solely on testimony of a
patient-witness shadowed by the occurrence of the
undisclosed risk."

Largey, 110 N.J. at 216 (citing Canterbury,
464 F.2d at 790-91). Thus, Mrs. Hayes's particular testimony as to whether or
not she would have undergone the surgery had she been informed of
the risk of infection was immaterial to the jury's determination,
and the defendant's argument fails.

Moreover, testimony concerning Mrs. Hayes describes a person
who was nervous about surgery, who originally requested a limited
procedure on her neck, and who was convinced by her doctor to
have a full face lift performed. It was well within the jury's
authority to conclude that a reasonable person in Mrs. Hayes's
position would not have consented to the larger operation. This
court sees no evidence that would support a finding that the
jury's verdict in this regard "shocked the judicial conscience."

The defendant has not met his "heavy burden" of showing that "a
miscarriage of justice would result if the verdict were to
stand" Klein v. Hollings, 992 F.2d 1285, 1290 (3d Cir. 1993).
The court finds for the above reasons that the verdict was not
against the weight of the evidence.

D. NEW TRIAL: JUDICIAL ERROR

The defendant suggests that the court committed three trial
errors that, either individually or cumulatively, were capable of
producing an unjust result: (1) admission of a cancelled check to
cross-examine Dr. Cha which had not been produced in discovery;
(2) admission of 1998 sterilization standards which bore no
relevance to the 1995 surgery; and (3) the court's favorable
ruling on the defendant's motion in limine concerning Dr. Cha's
medical license suspension.

Federal Rule of Civil Procedure 61 governs such motions and
provides:

No error in either the admission or the exclusion of
evidence and no error or defect in any ruling or
order or in anything done or omitted by the court or
by any of the parties is ground for granting
West Page 502
a new
trial or for setting aside a verdict or for vacating,
modifying, or otherwise disturbing a judgment or
order, unless refusal to take such action appears to
the court inconsistent with substantial justice. The
court at every stage of the proceeding must disregard
any error or defect in the proceeding which does not
affect the substantial rights of the parties.

Fed.R.Civ.P. 61. The district court is granted broad latitude
"when the reason for interfering with the jury verdict is a
ruling on a matter that initially rested within the discretion of
the court, e.g. evidentiary rulings, see Bhaya v. Westinghouse
Elec. Corp., 922 F.2d 184, 187 (3d Cir. 1990), . . . or
prejudicial statements made by counsel[, s]ee Lind v. Schenley
Indus., Inc., 278 F.2d 79, 90 (3d Cir. 1960)." Klein v.
Hollings, 992 F.2d 1285, 1289-90 (3d Cir. 1993). Thus, under
Federal Rule of Civil Procedure 61, the court must determine (1)
whether an error was in fact made, and (2) whether the error was
so prejudicial that a refusal to grant a new trial would be
"inconsistent with substantial justice." Fed.R.Civ.P. 61.

1. Cancelled Check

The defendant first asserts that the court erred by admitting a
cancelled check, signed by Mrs. Hayes and made out to Dr. Cha,
because the check had not been produced in discovery pursuant to
Fed.R.Civ.P. 26(a). Essentially, the defendant argues that the
plaintiffs violated a standing order of this court, present in
Rule 26(a), and thus should not have been permitted to use the
check at trial. The defendant does not provide legal support for
his argument, other than a passing reference to Rule 26(a)(1) and
(3).

"The exclusion of critical evidence is an extreme sanction, not
normally to be imposed absent a showing of willful deception or
flagrant disregard of a court order by the proponent of the
evidence." Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 719
(3d Cir. 1997) (internal citations omitted). When determining
whether such a sanction was required, the court must consider:

(1) the prejudice or surprise in fact of the party
against whom the excluded witnesses would have
testified, (2) the ability of that party to cure the
prejudice, (3) the extent to which waiver of the rule
against calling unlisted witnesses would disrupt the
orderly and efficient trial of the case or other
cases in the court, and (4) bad faith or wilfulness
in failing to comply with the district court's order.

Id. (internal citations omitted).

The first question to be addressed is whether the plaintiffs
actually violated a court order, even a standing order appearing
in the federal rules. Federal Rule of Civil Procedure 26(a)(1)
provides that:

a party must, without awaiting a discovery request,
provide to other parties: . . . (B) a copy of, or a
description by category and location of, all
documents, data compilations, and tangible things
that are in the possession, custody, or control of
the party and that the disclosing party may use to
support its claims or defenses, unless solely for
impeachment.

Fed.R.Civ.P. 26(a)(1) (emphasis supplied). Federal Rule of
Civil Procedure 26(a)(3) includes a similar limitation:

In addition to the disclosures required by Rule
26(a)(1) and (2), a party must provide to other
parties and promptly file with the court the
following information regarding the evidence that it
may present at trial other than solely for
impeachment[.]

West Page 503
Fed.R.Civ.P. 26(a)(3) (emphasis supplied). These limitations,
first appearing in Rule 26 with the 1993 inception of automatic
disclosure, were formally incorporated into the 2000 amendments
to Rule 26(a), when the Advisory Committee recognized the need
and desirability of a nationally uniform practice. Fed.R. Civ.
P. 26 2000 amd. Advisory Committee note "Purposes of amendments."
The Advisory Committee notes confirm that the change was meant to
"narrow" the ambitious scope of the original rule. See
Fed.R.Civ.P. 26(a)(1) 2000 amd. Advisory Committee note. The Advisory
Committee notes further comment that "[s]ubdivision (a)(3)
presently excuses pretrial disclosure of information solely for
impeachment. Impeachment information is similarly excluded from
the initial disclosure requirement [of subdivision (a)(1)(B)]."
Id.

The parties did not provide any analysis of these rules or
their interpretive jurisprudence, nor has this court found any
controlling Third Circuit case law. The courts that have
interpreted these rules have recognized their intent, and then
both permitted and denied admission of evidence used solely for
impeachment and withheld on the basis of the exclusionary
language of Rule 26. Compare Halbasch v. Med-Data, Inc.,
192 F.R.D. 641 (D. Or. 2000) (admitting evidence offered through
cross-examination as impeachment that had not been disclosed in
discovery) with Klonoski v. Mahlab, 156 F.3d 255 (1st Cir.
1998) (precluding evidence offered as impeachment evidence that
had not been disclosed in pretrial discovery). Central to these
courts' rulings is their interpretation of the word "solely" in
26(a)(3). The First Circuit read solely to mean that the evidence
could be used for nothing other than impeachment, that is, that
the evidence can have no substantive value. Klonoski,
156 F.3d at 270-71. The Klonoski court found that the evidence offered
as impeachment could have been offered in the case-in-chief, thus
it violated the broad disclosure requirement, and the failure to
disclose constituted misconduct under Rule 60, resulting in a new
trial. 156 F.3d 274-76. Halbasch rejected this interpretation,
opting instead to follow the reasoning of the Fourth and Seventh
Circuits. These circuits had construed "solely" to mean that the
evidence itself was offered only as impeachment and not in the
offeror's case-in-chief. Halbasch 192 F.R.D. at 649 (citing
DeBiasio v. Illinois Cent. R.R, 52 F.3d 678 (7th Cir. 1995),
and Jeffries v. Pacific Indemnity Co., 1997 WL 774459 (4th Cir.
Dec. 17, 1997) (unpublished)). In so holding, the Halbasch
court voiced its concern that "the First Circuit's approach would
result in an erosion of evidence capable of warranting the
impeachment designation." 192 F.R.D. at 649. The court explained:

It is the rare case where an attack on a witness's
credibility cannot be linked to some substantive
element of a claim. Under Klonoski, admission of
evidence offered "solely" to impeach would likely be
erroneous in almost every case. It is doubtful
Congress intended the "solely" exception to swallow
the entire impeachment rule.

Halbasch, 192 F.R.D. at 649-650. This court shares the
Halbasch court's concern. However, the court also recognizes
that this exclusionary phrase strikes at the heart of the amended
rules' broad intent. Automatic disclosure was adopted to end two
evils that had threatened civil litigation: expensive and
time-consuming pretrial discovery techniques and trial-by-ambush.
See Fed.R.Civ.P. 26 1993 Advisory Committee notes subd. (a).
A too expansive reading of the impeachment exclusion in 26(a)
could cause a resurgence of these evils. A too narrow reading
could encroach on an attorney's trial preparation,
West Page 504
another
important element of the civil system. See Hickman v. Taylor,
329 U.S. 495 (1947). A more balanced reading of the exclusion
would take into consideration fairness factors akin to those
noted in the Konstantopoulos case, namely (1) the prejudice or
surprise in fact of the party against whom the information was
offered, (2) the ability of that party to cure the prejudice, and
(3) the bad faith or wilfulness in withholding the information.
In short, the rule should be applied as an aid in the
truth-seeking process — the types of concerns extant in a Rule 61
review.

With these principles in mind, the court shall turn to the
evidence at issue. The defendant objects to admission of a
canceled check. The plaintiffs offered the check to counter the
defendant's assertion that he did not sell Mrs. Hayes any cream
for the problems that she was having with her face
post-operatively. Mrs. Hayes had testified as part of the
plaintiffs' direct case that she had visited Dr. Cha's office "a
number of times after the operation, usually on a Sunday, to buy