                                NOT FOR PUBLICATION WITHOUT THE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-4790-15T2

S.W.K., Individually and as
Administratrix Ad Prosequendum
of the ESTATE OF J.B.K.,

          Plaintiff-Appellant,

v.

ATLANTIC HEALTH SYSTEM, INC.,
MORRISTOWN MEDICAL CENTER,
EMERGENCY MEDICAL ASSOCIATES
OF NEW JERSEY, PA, STEVEN P.
GOHSLER, M.D., and ALFREDO
TAPIA, M.D.,

     Defendants-Respondents.
___________________________________

S.W.K., Individually and as
Administratrix Ad Prosequendum
of the ESTATE OF J.B.K.,

          Plaintiff-Appellant,

v.

MORRISTOWN MEDICAL CENTER,
EMERGENCY MEDICAL ASSOCIATES
OF NEW JERSEY, PA, EMERGENCY
MEDICAL ASSOCIATES/CHS, LLC,
EDIMS, LLC, ANN GRISWOLD, R.N.,
RICHARD KLEMM, R.N., GERY
MCKENNA, R.N., BRAD ROBBINS, R.N.,
and KATHLEEN GRABIANOWSKI, R.N.,

    Defendants-Respondents.

         Argued October 30, 2018 – Decided December 19, 2018

         Before Judges Rothstadt, Gilson, and Natali.

         On appeal from Superior Court of New Jersey, Law
         Division, Morris County, Docket Nos. L-2862-11 and
         L-2546-12.

         Stewart M. Leviss argued the cause for appellant
         (Berkowitz, Lichtstein, Kuritsky, Giasullo & Gross,
         LLC, attorneys; Stewart M. Leviss, on the briefs).

         Anthony Cocca argued the cause for respondents
         Alfredo Tapia, M.D., Atlantic Health System, Inc.,
         Morristown Medical Center, Ann Griswold, R.N.,
         Richard Klemm, R.N., Gery McKenna, R.N., Brad
         Robbins, R.N., and Kathleen Grabianowski, R.N.,
         (Cocca & Cutinello, LLP, attorneys; Anthony Cocca
         and Katelyn E. Cutinello, of counsel and on the brief).

         Russell J. Malta argued the cause for respondents
         Steven P. Gohsler, M.D., and Emergency Medical
         Associates of New Jersey, PA (Orlovsky, Moody,
         Schaaff, Conlon & Gabrysiak, attorneys; Paul F.
         Schaaff, Jr., of counsel; Russell J. Malta, on the brief).

PER CURIAM




                                                                      A-4790-15T2
                                     2
      This appeal arises out of a medical malpractice action following the death

of a patient. Plaintiff, who is the widow and administratrix of the decedent's

estate, contended that several doctors and nurses were negligent in failing to

diagnose and treat decedent for deep vein thrombosis, which thereafter caused

decedent to die from a pulmonary embolism.

      Following a trial, the jury found that none of the defendants breached their

relevant standards of care. Plaintiff appeals from the judgment memorializi ng

that verdict, from several pre-trial orders, and from a post-trial order denying

her motion for a new trial. She makes two primary arguments, contending the

trial court (1) failed to provide an appropriate jury charge on the issue of

avoidable consequences; and (2) erred in making several rulings on her claims

of evidence spoliation. Having reviewed the record and law, we affirm.

                                        I

      The decedent, J.B.K.,1 twice came to the emergency room at Morristown

Medical Center (MMC). He first came to the emergency room on July 2, 2010,

with complaints of pain and swelling behind his left knee. J.B.K. reported that

his symptoms developed after he flew from Minneapolis to Newark and he had



1
  Because the appeal involves a discussion of medical issues, we use initials to
protect the privacy interests of decedent and his family.
                                                                          A-4790-15T2
                                        3
not suffered any trauma to his knee. J.B.K. was seen by several nurses and

examined by the attending emergency room physician, Dr. Steven P. Gohsler.

      Dr. Gohsler testified that complaints of knee pain after long plane travel

can be indicative of deep vein thrombosis, a condition where a blood clot forms

in a patient's vein. Dr. Gohsler went on to testify, however, that he believed

J.B.K.'s clinical presentation was inconsistent with deep vein thrombosis. After

speaking with J.B.K. and taking a history, Dr. Gohsler diagnosed J.B.K. with

"atraumatic knee effusion." The doctor then directed J.B.K. to take over-the-

counter analgesics, restrict his activity, and follow up with both an orthopedist

and his primary care physician.

      On September 29, 2010, J.B.K. returned to the emergency room

complaining of pain in his lower back and left side radiating up to his left

shoulder. J.B.K. reported that he had lifted a heavy table a few days earlier. He

also stated that he was having shortness of breath when inhaling and fel t pain

when he took deep breaths. On his second visit to the emergency room, J.B.K.

was seen by several nurses and examined by Dr. Alfredo Tapia, a resident, who

conducted the examination under the supervision of Dr. Gohsler. The doctors

ordered a chest x-ray and interpreted the x-ray as showing a nodule in J.B.K.'s

right lower lung lobe. They testified that they directed J.B.K. to follow up with


                                                                         A-4790-15T2
                                       4
his primary care physician concerning that observation. Both doctors also

testified that they considered the possibility that J.B.K.'s symptoms were caused

by a pulmonary embolism, but they ruled that diagnosis out.

      Dr. Tapia diagnosed J.B.K. with back strain and prescribed pain

medication and also directed him to use an incentive spirometer to encourage

deeper breathing. Drs. Tapia and Gohsler testified that they believed J.B.K.'s

pain on inhalation was related to his back and side pain, which in turn was

caused by strain. Dr. Tapia went on to testify that he personally gave J.B.K.

discharge instructions and directed him to follow up with his primary care

physician in one or two days and to return to the emergency room if his

symptoms worsened. Dr. Tapia's handwritten discharge summary read "follow

up with [primary medical doctor] in 1-2 days for worsening symptoms," with

the final three words crossed out. At trial, Dr. Tapia confirmed that he crossed

out the words "for worsening symptoms."

      Both Drs. Tapia and Gohsler testified that they instructed J.B.K. to see his

primary care physician within a few days of leaving the emergency room. J.B.K.

was also given written aftercare instructions, which were reviewed with him.

Those instructions included a statement that J.B.K. was to "follow up with

private MD in 2-3 days[,] return to emergency room if condition worsens[.]"


                                                                          A-4790-15T2
                                        5
      After J.B.K. left the hospital, a radiologist reviewed his chest x-ray and

issued a report identifying not only the right lung nodule, but also "left lung base

infiltrate." Dr. Gohsler testified that after reviewing that report, he made several

unsuccessful attempts to call J.B.K.

      At trial, it was undisputed that J.B.K. did not follow up with his primary

care physician in the recommended timeframe. On October 12, 2010, J.B.K.

collapsed and, thereafter, he was pronounced dead. An autopsy identified the

cause of death as pulmonary thromboembolism.

      Following J.B.K.'s death, plaintiff filed negligence claims against the two

doctors and five nurses who had treated J.B.K. at the emergency room at MMC.

The complaint also named as defendants: MMC, Atlantic Health Systems, Inc.

(AHS), and Emergency Medical Associates of New Jersey (EMA), which is the

medical practice group where Dr. Gohsler works.

      Plaintiff alleged that the two doctors and five nurses were negligent and

committed medical malpractice in treating J.B.K. She also claimed that they

caused his wrongful death. She asserted that MMC, AHS, and EMA were

vicariously liable for the doctors' and nurses' actions. In addition, she claimed

negligent infliction of emotional distress. Finally, she asserted a claim that




                                                                            A-4790-15T2
                                         6
defendants failed to preserve all of J.B.K.'s medical records and altered or

amended J.B.K.'s medical records to conceal their negligence and malpractice.

       Before trial, the court granted partial summary judgment to defendants

dismissing certain of plaintiff's claims. In that regard, on February 20, 2015,

the court entered orders granting partial summary judgment to defendants and

dismissed plaintiff's individual emotional distress claims.     On February 19,

2016, the court granted defendants' motion for partial summary judgment

dismissing plaintiff's spoliation claims.

       At trial, plaintiff presented expert testimony contending that the doctors

and nurses who treated J.B.K. breached their duties of care by failing to diagnose

his deep vein thrombosis and pulmonary embolism.           Defendants presented

counter experts who testified that the doctors and nurses complied with their

duty of care.

       Following the close of evidence, the trial court instructed the jury on the

law.   In describing damages, the court gave an instruction on avoidable

consequences. The court did not, however, expressly instruct the jury that they

were not to consider comparative negligence or avoidable consequences as it

related to the issue of liability. Thereafter, the jury found that none of the

defendants had breached their duty of care.


                                                                          A-4790-15T2
                                        7
       The jury verdict was memorialized in a judgment entered on April 5, 2016.

Plaintiff made a motion for a new trial, but the court denied that motion in an

order entered on June 7, 2016. Plaintiff now appeals.

                                         II

       On appeal, plaintiff challenges the trial court's jury instructions and its

rulings on her spoliation of evidence claim. With regard to the jury charge,

plaintiff argues that the trial court failed to give a limiting instruction directing

the jury not to consider J.B.K.'s post-treatment conduct when evaluating

defendants' alleged malpractice. On spoliation, plaintiff makes three related

arguments. She contends that it was improper to (1) grant partial summary

judgment dismissing her spoliation claim ten days before trial; (2) restrict her

from eliciting evidence concerning spoliation during trial; and (3) deny her

request for an instruction on an adverse inference due to spoliation. We are not

persuaded by any of these arguments. We discern no reversible error in the jury

instructions and the rulings on spoliation were consistent with the facts and the

law.

       A.    The Jury Instructions

       "It is fundamental that '[a]ppropriate and proper charges to a jury are

essential for a fair trial.'" Velazquez ex rel. Velazquez v. Portadin, 163 N.J. 677,


                                                                             A-4790-15T2
                                         8
688 (2000) (alternation in original) (quoting State v. Green, 86 N.J. 281, 287

(1981)). "[A] jury charge must correctly state the applicable law, outline the

jury's function and be clear in how the jury should apply the legal principles

charged to the facts of the case at hand." Viscik v. Fowler Equip. Co., 173 N.J.

1, 18 (2002) (citing Velazquez, 163 N.J. at 688). An incorrect jury charge,

however, does not automatically warrant reversal; rather, reversal is appropriate

"only if the jury could have come to a different result had it been correctly

instructed."   Ibid. (citing Velazquez, 163 N.J. at 688).    In evaluating jury

instructions, we "examine the charge as a whole, rather than focus on individual

errors in isolation." Ibid. (citing Ryder v. Westinghouse Elec. Corp., 128 F.3d

128, 137 (3d Cir. 1997)).

      Here, plaintiff alleged medical malpractice against the doctors and nurses

who treated J.B.K. when he visited the emergency room on two occasions in

July and September 2010.      At trial, the defense focused on J.B.K.'s post-

treatment conduct, contending that J.B.K. failed to follow up with his primary

care physician or return to the emergency room when his condition worsened.

      During the charge conference, plaintiff's counsel expressed concern that

defendants had presented J.B.K.'s post-treatment failures as if they constituted

comparative negligence.     The trial court correctly agreed that comparative


                                                                         A-4790-15T2
                                       9
negligence did not apply. Accordingly, the trial judge stated that he would

instruct the jury on avoidable consequences.

      In issuing instructions to the jury, the trial judge first explained what

plaintiff needed to prove to establish that the medical professionals involved in

J.B.K.'s care were negligent. Thus, the judge instructed the jury on the concepts

of standard of care, deviation therefrom, and proximate cause. The judge then

instructed the jury on plaintiff's burden of proof as to damages. At the end of

the damages instruction, the judge stated:

            If you decide that the plaintiff is entitled to damages for
            [J.B.K.'s] injuries and death, which means that, in
            effect, you have decided that a defendant or defendants
            are responsible, you must then decide whether [J.B.K.]
            exercised reasonable care to avoid or mitigate the
            damages he suffered.

      The judge then outlined defendants' arguments that if J.B.K. had followed

up with his primary care physician or sought further treatment, he may have

survived. Accordingly, the judge instructed the jury:

            In short, you must decide what percentage, if any, of
            [J.B.K.'s] damages were caused by a failure on his part
            to exercise reasonable care to avoid or mitigate those
            damages.
                  If he was capable of exercising reasonable care to
            avoid or mitigate the injury, you must reduce his
            damages accordingly. So, if you find that the plaintiff
            has established that one or more of the defendants were
            negligent, you first would have to find that, and that the

                                                                          A-4790-15T2
                                       10
             negligence proximately caused the harm, then the
             defendant must prove by a preponderance of the
             evidence that [J.B.K.] could have reasonably acted to
             avoid or mitigate injury.

The judge went on to instruct the jury that if it found that J.B.K. failed to avoid

or mitigate his damages, the jury must "allocate, by percentages," defendants'

and J.B.K.'s relative responsibility for J.B.K.'s death.

      The judge further clarified the instructions by reviewing the verdict sheet

with the jury. The verdict sheet first asked the jury to determine whether each

defendant breached his or her relevant standard of care and proximately caused

J.B.K.'s death. The verdict sheet, thereafter, asked whether J.B.K. contributed

to his death "by failing to obtain medical care, as instructed; return[ing] to the

hospital if his symptoms changed or worsened; or otherwise failing to act

reasonably with regard to his health[.]" If the jury so found, the verdict sheet

asked the jurors to "[s]et forth, in terms of percentage, that portion of the

plaintiff's . . . injury" that occurred due to J.B.K.'s conduct.

      Those instructions correctly outlined the applicable law to the factual

contentions put forward by the parties. In that regard, the instructions directed

the jury first to determine defendants' negligence, if any, and then, and only

then, to address the issue of damages. In connection with damages, the jury

would consider the issue of avoidable consequences.

                                                                           A-4790-15T2
                                        11
      Plaintiff argues that the court's instruction did not clearly delineate the

purpose for which the jury was permitted to consider evidence of J.B.K.'s post-

treatment conduct. Accordingly, she contends that the jury's verdict should be

reversed and the matter remanded for a new trial because the instructions c ould

have led the jurors to believe that they could consider J.B.K.'s failure to follow

up with his primary care physician or return to the hospital when deciding

whether defendants were negligent. Plaintiff also argues that by giving the

avoidable consequence charge, without expressly instructing the jury that post-

treatment comparative negligence is not a defense to a medical malpractice

claim, the defense was allowed to improperly conflate avoidable consequences

and comparative negligence.

      We reject these arguments as inconsistent with the record. The trial judge

did not give a comparative negligence charge. Indeed, the trial judge agreed

with plaintiff that comparative negligence was not applicable to this medical

malpractice action. Read in full, the instructions did not suggest to the jury that

it should consider J.B.K.'s post-treatment actions or inactions in deciding

whether any of the defendants breached a duty of care to J.B.K. To the contrary,

the instructions were clear that defendants' liability was to be considered first,




                                                                           A-4790-15T2
                                       12
and damages and the related concept of avoidable consequences were only to be

considered after the jury determined if any of the defendants were negligent.

      In short, the jury instructions in this case were consistent with guidance

from our Supreme Court and this court. See, e.g., Komlodi v. Picciano, 217 N.J.

387, 411-13 (2014); Ostrowski v. Azzara, 111 N.J. 429, 436-38 (1988); D'Aries

v. Schell, 274 N.J. Super. 349, 360-61 (App. Div. 1994). Importantly, there was

no evidence that the jury was confused or misled by the instructions or verdict

sheet. See Cohen v. Cmty. Med. Ctr., 386 N.J. Super. 387, 399 (App. Div. 2006)

(explaining that where appropriate instructions have been given, jurors are

presumed to have followed them).

      B.    Spoliation

      Next, plaintiff argues that the trial court made several errors related to her

claims of spoliation. First, she contends that it was an error to grant summary

judgment ten days before trial.       Second, she argues that the trial judge

misconstrued the summary judgment ruling and unduly limited her attempts to

elicit testimony about spoliation. Finally, she asserts that the trial court should

have given a jury charge on an adverse inference from spoliation. None of these

arguments are supported by the record.




                                                                            A-4790-15T2
                                       13
      Spoliation involves "the hiding or destroying of litigation evidence," and

may be remedied "to make whole, as nearly as possible, the litigant whose cause

of action has been impaired by the absence of crucial evidence; to punish the

wrongdoer; and to deter others from such conduct." Rosenblit v. Zimmerman,

166 N.J. 391, 400-01 (2001). When a party can demonstrate spoliation, he or

she may have several remedies including (1) a tort claim, (2) discovery

sanctions, and (3) a spoliation inference. Id. at 401-03.

      To establish a separate tort action, the plaintiff must prove the elements

of a claim for fraudulent concealment of evidence.          Id. at 406-07. Those

elements include:

            (1) That defendant in the fraudulent concealment action
            had a legal obligation to disclose evidence in
            connection with an existing or pending litigation;

            (2) That the evidence was material to the litigation;

            (3) That plaintiff could not reasonably have obtained
            access to the evidence from another source;

            (4) That defendant intentionally withheld, altered or
            destroyed the evidence with purpose to disrupt the
            litigation;

            (5) That plaintiff was damaged in the underlying action
            by having to rely on an evidential record that did not
            contain the evidence defendant concealed.

            [Ibid.]

                                                                         A-4790-15T2
                                      14
      A plaintiff may also seek a spoliation inference instruction if he or she can

show that the defendant destroyed or concealed evidence during litigation. Id.

at 401. The inference allows the jury "to presume that the evidence the spoliator

destroyed or otherwise concealed would have been unfavorable to him or her."

Id. at 401-02. To receive the benefit of a spoliation inference instruction, a party

must demonstrate "prerequisites of intentionality" as to the alleged spoliator's

conduct. Hirsch v. Gen. Motors Corp., 266 N.J. Super. 222, 258 (Law Div.

1993); see also Rosenblit, 166 N.J. at 411.

      Here, plaintiff claimed that certain defendants altered or failed to produce

some hospital records related to J.B.K. In particular, plaintiff took issue with

the striking out of three words on the handwritten discharge instructions related

to J.B.K.'s September 29, 2010 treatment at the MMC emergency room. Prior

to trial, the court denied plaintiff's motion to sanction certain defendants. The

judge found that defendants had produced relevant computer-based information

and had also offered to provide specific documents, if requested. Plaintiff,

however, never followed up on that offer. Ultimately, the judge concluded that

there was no evidence of spoliation and, therefore, denied the motion.

      Thereafter, on December 24, 2015, certain defendants filed a motion for

partial summary judgment to dismiss plaintiff's spoliation claim. At the time


                                                                            A-4790-15T2
                                        15
that motion was filed, the case was scheduled for trial on February 29, 2016.

The court heard oral argument on the motion on February 19, 2016, and granted

the motion in an order entered that same day. The court found that plaintiff

never developed evidence supporting the spoliation claim and, therefore, there

was no evidence to show that defendants intentionally destroyed, falsified, or

concealed documents.

      On this appeal, plaintiff does not challenge the court's substantive ruling

granting summary judgment on the spoliation claim. Instead, she challenges the

dismissal of the claim on procedural grounds. Specifically, she argues that

defendants violated Rule 4:46-1 because they did not file their motion for

summary judgment in a timely manner. We disagree.

      Rule 4:46-1 provides that a motion for summary judgment "shall be

returnable no later than 30 days before the scheduled trial date, unless the court

otherwise orders for good cause shown[.]" The rule further provides that "if the

decision is not communicated to the parties at least 10 days prior to the

scheduled trial date, an application for adjournment shall be liberally granted."

Ibid. That summary judgment rule does not establish time requirements "that

must be met in every case for due process demands to be satisfied." Cho v.

Trinitas Reg'l Med. Ctr., 443 N.J. Super. 461, 474 (App. Div. 2015). Instead,


                                                                          A-4790-15T2
                                       16
the time requirements "provide a useful background for assessing whether [the

party opposing the motion] had an opportunity to be heard at a meaningful time

and in a meaningful manner." Ibid.

      Here, the return date for defendants' motion was January 22, 2016, more

than thirty days before the scheduled trial date of February 29, 2016. Although

the court did not hear oral arguments until February 19, 2016, the court issued

its order and stated the reasons for its decision on the record that same day, ten

days before the trial date. The record establishes that plaintiff was given a

meaningful opportunity to be heard on the motion. Accordingly, we discern no

reversible error concerning the timing requirements set forth in Rule 4:46-1.

      Next, plaintiff contends that the trial court misconstrued the scope of the

summary judgment decision on her spoliation claim and improperly restricted

her ability to bring out evidence at trial. We review such evidentiary issues for

an abuse of discretion. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202

N.J. 369, 383-84 (2010) (citing Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492

(1999)).

      Having reviewed the trial transcripts, we discern no abuse of discretion by

the trial court. When the trial judge did limit plaintiff's examinations during

trial, there was a foundation for each of those rulings. Just as importantly, the


                                                                          A-4790-15T2
                                       17
record reflects that plaintiff was given the opportunity to question the doctors

on the handwritten alteration on the discharge instructions. Thus, plaintiff

suffered no prejudice since her counsel was afforded the opportunity to explore

that alteration at trial.

       Finally, we discern no error in the trial judge's decision not to give a

spoliation inference instruction. To warrant such an instruction, plaintiff needed

to present evidence that defendants intentionally destroyed or altered records.

In pre-trial rulings and at trial, the court found that plaintiff had not presented

such evidence. Accordingly, the trial court's decision not to give the instruction

was proper.

       In summary, having reviewed the extensive record in light of plaintiff's

arguments, we discern no basis to reverse the jury verdict. The jury instructions,

when considered in totality, were appropriate and correct and the rulings

concerning spoliation were supported by the law and the material facts.

       Affirmed.




                                                                           A-4790-15T2
                                       18
