STATE OF NEW JERSEY VS. SAMUEL K. DAVISÂ (12-12-1189, GLOUCESTER COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1573-14T1
LORRAINE SHERIDAN,
Individually and as
Administratrix of the
ESTATE OF JAMES SHERIDAN
and Administratrix ad
Prosequendum of ESTATE OF
JAMES SHERIDAN,
Plaintiff-Appellant,
v.
DR. FREDERIC LEHMAN,
Defendant-Respondent,
and
COMMUNITY MEDICAL CENTER,
Defendant.
Argued December 13, 2016 – Decided February 13, 2017
Before Judges Reisner, Koblitz and Rothstadt.
On appeal from the Superior Court of New
Jersey, Law Division, Ocean County, Docket No.
L-1913-11.
G. John Germann argued the cause for appellant
(DeNoia Tambasco & Germann, attorneys; Thomas
DeNoia, of counsel; Mr. Germann, on the
brief).
Hugh P. Francis argued the cause for
respondent (Francis & Berry, attorneys; Mr.
Francis, of counsel; Mr. Francis and Joanna
Huc, on the brief).
PER CURIAM
Lorraine Sheridan (plaintiff), individually and as
administratrix of the estate of her husband, James Sheridan
(Sheridan), appeals from an August 8, 2014 order dismissing the
complaint based on a no-cause jury verdict in her medical
malpractice lawsuit.
Sheridan committed suicide approximately two weeks after
defendant Dr. Frederic Lehman prescribed the drug Lexapro to treat
Sheridan's anxiety, depression and insomnia. Plaintiff asserted
that defendant was professionally negligent in prescribing the
drug and then failing to properly monitor Sheridan's condition for
possible negative side effects of Lexapro. Plaintiff also alleged
lack of informed consent, asserting that defendant failed to tell
Sheridan about the drug's possible side effects.
The jury found that defendant did not deviate from
professional standards. The jury found a lack of informed consent,
and found that a reasonable person in Sheridan's situation either
would not have taken Lexapro or would not have continued taking
the drug, and that the "undisclosed risks" of the drug occurred.
However, the jury also found that Lexapro was not a proximate
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cause of Sheridan's suicide.
On this appeal, plaintiff contends that defense counsel made
improper statements during the trial; there were errors in the
jury instructions on informed consent and in one question on the
verdict sheet; the trial court improperly limited plaintiff's
cross-examination of defendant and improperly limited the
testimony of plaintiff's proximate cause expert; and the court
should have granted plaintiff's new trial motion. After reviewing
the record in light of the applicable legal standards, we find no
merit in any of those contentions. Plaintiff presented the same
arguments to the trial judge in her new trial motion. The judge
thoroughly and correctly decided the issues in his November 6,
2014 written opinion rejecting the motion. Except as further
addressed in this opinion, we affirm for the reasons stated by the
trial judge.
I
We begin by outlining the most pertinent trial evidence.
Lexapro is an anti-anxiety and anti-depressant drug belonging to
the class of selective serotonin reuptake inhibitors (SSRIs).
According to the prescribing information for Lexapro:
Patients with major depressive disorder
(MDD), both adult and pediatric, may
experience worsening of their depression
and/or the emergence of suicidal ideation and
behavior . . . or unusual changes in behavior
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. . . and this risk may persist until
significant remission occurs. Suicide is a
known risk of depression . . . . There has
been a long-standing concern . . . that
antidepressants may have a role in inducing
worsening of depression and the emergence of
suicidality in certain patients during the
early phases of the treatment. . . . [T]rials
of antidepressant drugs (SSRIs and others)
showed that these drugs increase the risk of
suicidal thinking and behavior . . . in
children, adolescents and young adults (ages
18-24) with major depressive disorder . . .
and other psychiatric disorders. Short-term
studies did not show an increase in the risk
of suicidality with antidepressants compared
to placebo in adults beyond 24; there was a
reduction with antidepressants compared to
placebo in adults aged 65 and older.
[Emphasis added.]
The prescribing information further provides that all
patients being treated with antidepressants "should be monitored
appropriately and observed closely for clinical worsening,
suicidality1 and unusual changes in behavior, especially during
the initial few months." It advises that symptoms such as
agitation, insomnia and akathisia (psychomotor restlessness) could
occur. In addition, families and caregivers of patients being
treated with antidepressants "should be alerted about the need to
monitor patients for the emergence of agitation, irritability,
1
"Suicidality" does not necessarily mean "suicide"; it means
having suicidal thoughts or suicidal actions or actually
committing suicide.
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unusual changes in behavior . . . as well as the emergence of
suicidality, and to report such symptoms immediately to health
care providers."
The black box warning stated:
Warning, suicidality in antidepressant drugs:
Antidepressants increase the risk, compared to
placebo, of suicidal thinking and behavior
. . . in children, adolescents, and young
adults. . . . Anyone considering the use of
Lexapro or any other antidepressant in a
child, adolescent, or young adult must balance
this risk with the clinical need. Short-term
studies did not show an increase in the risk
of suicidality with antidepressants compared
to placebo in adults beyond age 24. . . .
Patients of all ages who are started on
antidepressant therapy should be monitored
appropriately and observed closely for
clinical worsening, suicidality, or unusual
changes in behavior. Families and caregivers
should be advised of the need for close
observation and communication with the
prescriber.
[Emphasis added.]
Plaintiff testified that in late May 2009, while she was
still recovering from a torn Achilles tendon, Sheridan began
experiencing an increase in work-related stress. On May 31,
Sheridan told her that he was not breathing right and that he
needed to go to the hospital. Sheridan drove himself to the
Community Medical Center in Toms River complaining of anxiety and
panic. He was given a psychiatric screening and a referral to
outpatient psychiatric care.
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Nicole Liberto, an outpatient social worker at the Community
Medical Center, spoke to Sheridan, who told her that he was having
a lot of anxiety and difficulty breathing due to a lot of people
being let go in his department and having to do their work. In
addition, he was taking on a lot of the responsibilities at home
due to his wife's recovery. Liberto diagnosed him as having an
anxiety disorder with panic attacks. After reviewing Sheridan's
case with her superiors, Liberto gave him a referral for a
psychiatrist.
The same day, plaintiff obtained a ride to the hospital and
spoke to a social worker, whom she did not identify, who asked her
whether she thought Sheridan was suicidal. Plaintiff replied that
she did not believe he was. She testified that before this time
Sheridan had not been diagnosed with depression. The social worker
recommended to plaintiff that Sheridan make an appointment with a
psychiatrist. He attempted to do so, according to plaintiff, but
there were no openings that would be covered by his insurance for
thirty days. Instead, he made an appointment with a social
worker/psychologist, Kathy Freit.
Prior to that appointment, Sheridan saw defendant, his
regular physician, on June 2, 2009. When Sheridan came home from
the appointment, he told plaintiff that defendant had diagnosed
him with anxiety and had given him medication. She saw ten
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"blister packs" of Lexapro with seven in each pack. Sheridan also
was given a prescription for anxiety, according to plaintiff.
Freit's deposition was read into the record. Freit stated
that she saw Sheridan on June 4, and that he presented with
moderate depression, but she did not believe that he had severe
psychiatric problems. He complained of constant stress and worry,
but denied any thoughts of suicide. Freit determined that Sheridan
had thought disturbances that were at least partially due to his
inability to help his wife in her recovery from surgery. He also
complained of feeling overwhelmed by his work and home
responsibilities. Based on the examination, Freit did not believe
that Sheridan was a threat to harm himself.
After about a week on the medication, Sheridan called
defendant and plaintiff heard him say that he did not like the way
the medication was making him feel, and that he was not sleeping
any better and had trouble focusing. After he hung up, Sheridan
told plaintiff that defendant said that this was normal in the
early stages of taking Lexapro.
A little later that day, Sheridan told plaintiff that he had
to go see defendant, and then left for the defendant's office.
When Sheridan returned, he told plaintiff that defendant had given
him a note putting him on disability until further notice for
severe anxiety and depression.
7 A-1573-14T1
Plaintiff testified that Sheridan began taking the Lexapro
"almost immediately"; she stated that after doing so, there were
times when he "wasn't there," "lacked focus," and was agitated.
Sheridan had never behaved like this before. He told her that he
did not like the way the Lexapro made him feel, at one point saying
that it made him feel "like a mental freak."
Sheridan's mother-in-law testified that she saw Sheridan
after he started taking the medication. He told her that he felt
worse on the Lexapro, that he was very anxious, had trouble
sleeping, and was having nightmares when he did sleep. Sheridan's
son testified that in late May and early June 2009, Sheridan became
very withdrawn. Over the next week or two, Sheridan seemed worse.
On June 18, the son found Sheridan dead in the shed next to their
house. Sheridan had taken an overdose of various medications,
none of which were Lexapro.
Sheridan left a suicide note, which read as follows:
I'm not sure where to begin but I think
I have been ill for some time. It's a dark
place to be in. Somewhere along the way I had
some kind of breakdown. I have tried to pull
myself out but nothing seems to be working.
Things have changed & will never be the same.
I love you all so much. I want you to know
this has nothing to do with you - it's all me.
I'm ill & don't want to be a freak. You are
all the best parts of my life & I am so proud
of you. I tried to do the right things in my
life & the best thing I did was find [Lorraine]
& have wonderful kids. I hope that in time
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you will find it in your hearts to forgive me.
I am so sorry. I love you all so much. I
will do my best to watch over you.
Defendant testified that Sheridan had become his patient in
2002. At the June 2, 2009 appointment, Sheridan complained of an
increase in stress at home and at work, and an inability to sleep.
He told defendant that he had a panic attack a couple of days
before and that he was feeling anxious and depressed. However,
he did not tell defendant that he had gone to the Community Medical
Center and that he had undergone a psychiatric crisis evaluation.
Defendant testified that he did not ask Sheridan if he had suicidal
thoughts because he knew Sheridan and his family, knew Sheridan
had no history of mental illness, and based on Sheridan's personal
circumstances, believed he "was low risk for suicide."
Defendant noted that Sheridan had lost about thirty pounds
in less than a year, and defendant believed this was due to the
anxiety and depression. He ordered a blood test, and the results
were normal.
Defendant testified that he had prescribed Lexapro to
patients many times and was aware of the black box warning. He
sought to treat Sheridan's depression with the Lexapro and the
anxiety with Ativan. He gave Sheridan a starter dose so that he
would not have to spend money in case the Lexapro did not work.
Defendant did not have samples of the Ativan, so he gave Sheridan
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a prescription. He told Sheridan that both medicines could make
him feel tired, but did not tell him about the black box warning
because it did not apply to someone his age.
Defendant spoke to Sheridan the following day, June 3, and
Sheridan told him that he was feeling better. Defendant told
Sheridan that if he had any concerns or problems, or began feeling
worse, to call him immediately. Sheridan called him five to seven
days later to tell him that he was still feeling anxious and
depressed. Defendant asked him how he felt in comparison to the
June 2 appointment. Sheridan replied, "A little bit better."
Defendant told him that it took a while for the drug to build up
in his system to the point where it would start making a
difference. Defendant denied that Sheridan said he felt weird,
or like a freak. Had he done so, defendant would have told him
to come in immediately.
Dr. William Wertheim testified for plaintiff as an expert in
internal medicine. In Wertheim's opinion, defendant deviated from
the standard of care for an internal medicine physician by failing
to do an adequate assessment of Sheridan's depression, failing to
provide information about the risks of the treatment he was
offering, and failing to provide appropriate monitoring for the
treatment.
Wertheim noted that the Physician's Desk Reference (PDR) on
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Lexapro warned that patients given Lexapro should be monitored for
worsening of the condition, suicide and unusual behavior,
especially in the initial period of taking the drug. In addition,
there was a black box warning from the Food and Drug Administration
(FDA), which indicated a serious level of concern regarding the
risk of suicidal thinking. Physicians were also advised to inform
patients about the benefits and risks associated with the drug and
counsel them in its appropriate use.
Wertheim further testified that the applicable standard of
care was to disclose the black box warnings to the patient,
particularly the increase in suicidality and worsening of
depression symptoms. An adequate assessment would have included
an assessment of Sheridan's suicide risk. Based on Sheridan's
presentation, defendant should have immediately given Sheridan an
appointment for a follow-up appointment within a week or two,
rather than relying on Sheridan to schedule an appointment.
Wertheim opined that the failure to perform an adequate
assessment, failure to disclose the risks of the medication, and
failure to provide adequate monitoring and follow-up were
proximate causes of the suicide. The deviation was also a
proximate cause of Sheridan's suicide, according to Wertheim,
because the failure to monitor and to have a follow-up appointment
constituted a lost opportunity to prevent Sheridan from acting on
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his suicidal ideation. In addition, because defendant failed to
disclose the risks of the medication, Sheridan was unable to give
an informed consent to the treatment, according to Wertheim.
On cross-examination, Wertheim admitted that suicide was "the
greatest known risk" of depression; it was therefore important for
a doctor to put a patient with depression on anti-depressant
medication; and prescribing Lexapro was a proper treatment for
Sheridan's depression. He also admitted that, if plaintiff's
statements about her husband were correct, Sheridan took twice as
much Lexapro as defendant had instructed him to take. Dr. Wertheim
further admitted that the Black Box warning for Lexapro did not
state that the drug posed a risk of increased suicidal thinking
and behavior for persons of Sheridan's age. He also admitted he
knew of no scientific evidence that Lexapro increased the risk of
suicide in adults over the age of twenty-four.
Focusing on a telephone call between Sheridan and plaintiff
a few days before the suicide, Dr. Wertheim admitted that, if
Sheridan did not say he was feeling "weird" but instead said that
he was feeling a little better, then there was no need for
defendant to schedule an immediate follow-up appointment for
Sheridan. He admitted that his opinion thus hinged on whether the
jury believed plaintiff's version of the phone call or defendant's
version.
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Dr. Peter Breggin, a psychiatrist, testified for plaintiff
on the issue of proximate cause. Breggin stated that a patient
could undergo a side effect from just one dose of an SSRI drug
like Lexapro, and a lot of side effects in the first three days.
He further testified that nightmares were one of "the single most
common adverse effects of SSRI's." In addition, he believed that
Sheridan's reported behavior was consistent with the side effect
of a distortion of reality. These side effects are particularly
acute, according to Breggin, in the first few weeks of taking the
drug. "It's a very common way people report the adverse effect.
They feel different or changed in a way they can't describe."
In Breggin's opinion, based on the available literature,
Lexapro can cause suicidal behavior in adults as well as
adolescents. He analyzed Sheridan's suicide note and found that
it was consistent with Lexapro being a substantial factor in the
suicide because Sheridan did not blame anyone for his situation,
and because Sheridan felt as though something weird was going on
inside of him, and that he did not want to live "like a freak."
Thus, Breggin concluded that the Lexapro was a substantial factor
in Sheridan's suicide.
On cross-examination, however, Dr. Breggin admitted that the
FDA had not found that Lexapro actually causes suicide, even in
children. He also testified that he did not believe that
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antidepressant medications were an effective treatment for
depression. He admitted that his views were contrary to the
conclusions of the FDA and "the overwhelming literature in the
field of psychiatry[.]" Defense counsel also confronted Dr.
Breggin with numerous quotations from his own articles which
appeared to undermine the conclusions to which he testified on
direct examination.
Dr. Kenneth Granet testified for defendant as an expert in
internal medicine. He opined that defendant did not deviate from
the applicable standard of care. He did not agree that defendant's
initial assessment of Sheridan was inadequate, particularly in
view of their lengthy doctor-patient relationship. He opined that
prescribing Lexapro was both safe and reasonable and that defendant
acted properly in ordering a blood test.
Granet did not believe defendant acted improperly in not
discussing all the risks of the medicine contained in the PDR,
because "you cannot give every single side effect to a patient."
He testified that that would be time consuming and inappropriate.
Telling Sheridan that the drug would take seven to thirty days to
start to work, and that it could cause tiredness, complied with
the standard of care. Granet also believed that the dosage of
Lexapro was appropriate, and that prescribing Ativan at the same
time was appropriate to relieve the stress and anxiety immediately.
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Giving a patient starter samples "happens all the time[,]"
according to Granet, and failing to give Sheridan the information
material that came with the samples was not a breach of the
standard of care. He added that only a small percentage of those
taking Lexapro suffered the side effects listed in the PDR.
Granet testified that defendant did not breach the standard
of care in his monitoring of Sheridan. Two contacts within a
week's time and blood work was "perfectly reasonable." Nor did
failing to set a specific follow-up appointment breach the standard
of care. A physician would not schedule an appointment within two
weeks, according to Granet, because it typically takes longer than
two weeks for the drug to work. Had Sheridan reported that he
felt worse with the medication, then defendant should have
scheduled an appointment, or at least questioned him further
Even assuming that defendant breached the standard of care,
Granet opined that the breach was not a substantial factor in the
suicide. Rather, the substantial factor was Sheridan's
depression. Granet pointed to the suicide note in which Sheridan
said that he had been sick for some time. Granet concluded
defendant could not have foreseen Sheridan's suicide.
The defense also presented Dr. John Thompson, an expert in
psychiatry. Dr. Thompson opined that the most likely cause of the
suicide was Sheridan's depression, and that Lexapro was not a
15 A-1573-14T1
proximate cause. Thompson testified that he did not know of any
literature that showed an increase in suicidality among Sheridan's
age group while taking Lexapro. He opined that the studies Dr.
Breggin relied on were limited in scope and outdated. Dr. Thompson
also testified that, in general, suicide due to taking Lexapro was
"extremely rare."
When asked why Sheridan would have committed suicide while
taking Lexapro, Thompson explained that the medicine may not have
"kicked in fully yet[,]" or it might not have been the right SSRI
for Sheridan. He explained that the same SSRI may be effective
in treating one patient but not another. Thompson saw nothing in
the evidence to indicate that the Lexapro made Sheridan's mental
condition worse. Plaintiff's attorney did not cross-examine
Thompson, except to ask him how much he charged for his testimony.
Dr. David Dunner, also testified for defendant as an expert
in psychiatry, specializing in the treatment of depression. Dunner
opined that the Lexapro did not cause or contribute to Sheridan's
suicide. He knew of no studies that found an increase in suicide
or suicidal thoughts among those in Sheridan's age who took
Lexapro. According to Dr. Dunner, akathisia, or agitation, which
plaintiff contended may have contributed to the suicide, occurs
in less than one percent of those taking SSRIs. Dr. Dunner
criticized the data in the studies Dr. Breggin relied upon as
16 A-1573-14T1
"brief" and "anecdotal" and not scientifically valid.
II
On this appeal, plaintiff contends that defense counsel made
improper statements, warranting reversal of the verdict and a new
trial. Plaintiff's trial counsel did not object to most of those
statements, and we presume he did not object because he did not
perceive the comments as unfair or otherwise objectionable.
Jackowitz v. Lang, 408 N.J. Super. 495, 505 (App. Div. 2009).
Absent a trial objection, we review plaintiff's appellate
arguments for plain error. Ibid.; R. 2:10-2. Moreover,
"[f]leeting comments, even if improper, may not warrant a new
trial, particularly when the verdict is fair." Jackowitz, supra,
408 N.J. Super. at 505 (citing Dolan v. Sea Transfer Corp., 398
N.J. Super. 313, 332 (App. Div.), certif. denied, 195 N.J. 520
(2008)).
Plaintiff first argues that defense counsel made disparaging
remarks about plaintiff's liability expert, Dr. Wertheim. Taken
in context, the comments about Dr. Wertheim were not improper.
Counsel merely pointed out to the jury that Dr. Wertheim was in
the courtroom and therefore would be aware of the defense's legal
theories when he testified.
Moreover, counsel's primary comments about Dr. Wertheim - and
the focus of his attack on plaintiff's entire case - concerned the
17 A-1573-14T1
lack of evidence that Lexapro causes suicide. Indeed, defense
counsel repeatedly reminded the jury that, in his opening
statement, plaintiff's counsel admitted to them that he could not
prove that Lexapro caused Sheridan's suicide. Defense counsel
also pointed out to the jury some information that plaintiff's
counsel failed to tell them in his opening statement - that Lexapro
has only been shown to cause an increase in "suicidality" among
young people up to age twenty-four, but not in adults over twenty-
four.
Defense counsel also highlighted damaging admissions that Dr.
Wertheim had made in his deposition. Those perfectly proper
comments were far more damaging to plaintiff's case than defense
counsel's passing remarks about Dr. Wertheim being in the
courtroom. As previously noted, there was no objection to the
latter remarks and we find no plain error. R. 2:10-2.
We agree with plaintiff that defense counsel improperly
speculated to the jury that Sheridan probably looked up information
about Lexapro on Google. However, that isolated remark, to which
there was no objection, did not have a clear capacity to produce
an unjust result. R. 2:10-2; Jackowitz, supra, 408 N.J. Super.
at 505. Defense counsel's comment was made in the context of
rebutting plaintiff counsel's opening assertion that Sheridan
never had a chance to find out the possible side effects of
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Lexapro, because defendant did not explain them and did not give
Sheridan the package inserts when he gave him the Lexapro.
In response, defense counsel told the jury that during the
case, they would hear that plaintiff, and one of the family's
children, also took antidepressants similar to Lexapro and,
therefore, Sheridan would have had access to package directions
accompanying those antidepressants. In that context, counsel also
argued to the jury that Sheridan, having a "type A" personality
and being a good parent, would not likely have allowed his child
to take an anti-depressant drug without reading about the
medication and its side effects. During those comments, counsel
stated that Sheridan probably Googled Lexapro. That was improper
speculation. However, we conclude it had no unfair impact on the
jury, because in its verdict, the jury found that defendant failed
to tell Sheridan about the side effects of Lexapro and found either
that Sheridan would not have taken Lexapro or would not have
continued taking it, had he been so informed. Consequently, we
find no plain error. R. 2:10-2.
We find nothing improper in defense counsel's telling the
jury that they might, understandably, feel very sorry for
plaintiff, but that they should decide the case based on the trial
evidence and not on sympathy for her. In his opening remarks,
defense counsel skillfully anticipated and attempted to defuse
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aspects of plaintiff's case that could be prejudicial to defendant.
The sympathy factor was one of those. There was no objection to
defense counsel's comments, because they were not objectionable.
Although she raised no objection at trial, plaintiff now
complains about defense counsel's use of an analogy concerning a
banana peel. In his opening statement and his summation, the
attorney asked the jury to think of two situations - one where he
dropped a banana peel on the steps to the judge's bench, causing
the judge to slip and fall on the peel; and another in which he
dropped a banana peel elsewhere in the courtroom and nobody slipped
on it. The attorney explained that in both situations there was
negligence, but the negligence only caused injury in the first
situation. The analogy was designed to explain to the jury the
defense theory that, even if defendant was professionally
negligent or failed to fully inform Sheridan about the risks of
Lexapro, his conduct did not cause Sheridan's suicide. Viewed in
context, there was nothing improper in the banana peel analogy.
Contrary to plaintiff's argument, the analogy was not likely to
mislead the jury into believing that plaintiff needed to prove
Lexapro was the only causal factor in Sheridan's injury.
In a related argument, plaintiff contends that defense
counsel misstated the law in his summation, in telling the jury
that if they did not find that Lexapro caused defendant's suicide,
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the case was "over." However, after an objection and a sidebar
conference, defense counsel backtracked, properly urged the jury
to focus on whether Lexapro was "a substantial factor in causing
[Sheridan's] death[,]" and argued that it was not a factor.
Additionally, in the final charge to the jury, the trial judge
correctly instructed them about the concept of proximate cause.
The verdict sheet also correctly asked the jury whether the
medication was a proximate cause - not the proximate cause - of
Sheridan's suicide. The jury answered "no." We agree with the
trial judge that defense counsel's statement in summation did not
warrant a new trial.
Next, plaintiff contends that in his summation, defendant's
attorney crossed the line of proper cross-examination in
questioning plaintiff's proximate cause expert, Dr. Breggin.
Again, the trial judge thoroughly and correctly rejected the same
argument in his November 6, 2014 opinion.
We agree with plaintiff that defense counsel should not have
stated to the jury that if they Googled Dr. Breggin's name after
the trial was over, they would discover "that he was against his
own field of psychiatry" and "does whatever he can to promote his
books . . . against the psychiatric field." However, on this
record, we find no plain error. R. 2:10-2. In his testimony, Dr.
Breggin himself emphasized to the jury how famous he was, including
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names of well-known talk shows on which he appeared, and how many
popular books he had written. He also freely admitted that he was
a maverick in the field of psychiatry and that his views on SSRI
medications were outside the mainstream of his profession.
Counsel's brief comment did not have "a clear capacity to produce
an unjust result," particularly in light of the strong defense
evidence undermining Dr. Breggin's testimony. R. 2:10-2.
Plaintiff's remaining appellate arguments were presented to
the trial judge on plaintiff's motion for a new trial. In his
comprehensive opinion, the judge thoroughly and correctly
addressed those issues and we affirm for the reasons he stated.
Except for the following brief comments, no further discussion is
required as to those issues. R. 2:11-3(e)(1)(E).
At the charge conference, defense counsel not only failed
to request a Scafidi2 charge, but he agreed with the judge that
this was not a "Scafidi" case and he agreed with the judge's
proposal to charge the jury using Model Jury Charge (Civil) 6.10
and 6.13. In fact, he reaffirmed that position just before the
2
Scafidi v. Seiler, 119 N.J. 93 (1990); Model Jury Charge (Civil)
5.50E, Pre-Existing Condition–Increased Risk/Loss of Chance
Proximate Cause.
22 A-1573-14T1
judge read the charge to the jury.3 We find no error, much less
plain error, in the proximate cause charge.
Plaintiff's argument that the trial judge unduly limited Dr.
Breggin's testimony is likewise without merit. Dr. Breggin was
precluded from testifying about the standard of care or defendant's
alleged deviation from the standard, because he did not practice
medicine in the same specialty area as defendant. See N.J.S.A.
2A:53A-41(a); Nicholas v. Mynster, 213 N.J. 463, 487-88 (2013).
The judge properly limited Dr. Breggin's testimony to proximate
cause issues, but permitted him to testify fully as to those
issues.
In summary, plaintiff's case, while sympathetic, suffered
from fundamental weaknesses of proof. In particular, the
Physician's Desk Reference and package inserts for Lexapro
indicated there was no scientific evidence that Lexapro caused
suicide, or even suicidal thinking, in adults over the age of
twenty-four. In addition to the defense experts, plaintiff's own
3
We decline to consider the claim, asserted in plaintiff's brief,
that her counsel requested a Scafidi charge at an unrecorded in-
chambers portion of the charge conference. If plaintiff believed
that the appellate record did not accurately reflect what occurred
at the trial, she should have filed a motion to supplement or
correct the record. R. 2:5-3(f); Ryan v. Brown, 279 N.J. Super.
648, 651-52 (App. Div. 1995). We will not consider an appellate
argument for which no adequate record has been provided. Id. at
651.
23 A-1573-14T1
liability expert, Dr. Wertheim, admitted there was no scientific
evidence establishing that Lexapro causes suicide. His testimony
contradicted the testimony of plaintiff's causation expert, Dr.
Breggin. Additionally, with the exception of Dr. Breggin, all of
the relevant witnesses testified that suicide was the most serious
risk posed by depression, a view confirmed by the PDR and the
package insert for Lexapro.
According to defendant, Sheridan told him he was feeling "a
little bit better" a few days after starting to take the Lexapro.
And Sheridan left a suicide note indicating that he had not been
feeling normal for a long time, thus casting doubt on plaintiff's
theory that the Lexapro caused Sheridan's suicide. Moreover,
plaintiff's causation expert, Dr. Breggin, was effectively
impeached on cross-examination, and reasonable jurors may have
found his testimony unpersuasive.4
Like the trial judge, we cannot conclude that the verdict was
a miscarriage of justice. R. 2:10-2.
Affirmed.
4
Defense counsel's one improper question to Dr. Breggin,
concerning "genocide," was the subject of an immediate objection.
The judge sustained the objection and properly directed the jury
to disregard the question. On this record, the question clearly
did not lead the jury to reach a verdict it otherwise would not
have reached. R. 2:10-2; State v. Macon, 57 N.J. 325, 337 (1971).
24 A-1573-14T1