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Spectre of higher taxes looms over new car market
It's a reflection of the UK new car market's sparkling success in recent years that the failure last year to achieve a new sales record by only a whisker was met with tinges of disappointment among manufacturers and retailers. Even so, a market size of 2.57m represents an excellent outturn after a period of prolonged growth and is indicative of the continuing vigour of demand.
The critical issue now, of course, is the market's future direction. Given the industry's traditional cyclical pattern, has it reached a plateau, or was 2004 a pause for breath before the market moves to a new high? How will the industry's own actions influence market size and, maybe more to the point, what is its potential for manoeuvre, bearing in mind wafer thin or non-existent margins? With a May general election looking a certainty, the prospect of higher taxes later in the year in the event of a Labour win looks high and may prove the straw that finally breaks the retail consumer's back. Personal debt has mushroomed to an alarming scale with the result that setbacks like falling personal disposable incomes, higher interest rates and rising unemployment would have a particularly adverse reaction.
On another issue, it is widely anticipated that manufacturing costs will increase in line with higher energy and commodity prices. Steel prices have jumped strongly and further increases may stick during the coming year, leading perhaps to a general rise in new car prices. To what extent, though, will vehicle manufacturers be able to pass these higher costs on to consumers? Some commentators believe that competition is too great for any marked increase in car prices to be possible, while others contend that margins are already so wafer thin or non-existent that prices will necessarily advance. Whatever the outcome, component suppliers should anticipate further demands from their customers for lower prices, while any move on the part of consumers to resist price rises could be followed by attractive discounts and other incentives to rekindle demand.
In any event the mood of consumers is likely to be conditioned heavily by the trend in residual values which, at present, does not look good. According to Glass's, used car prices are continuing to decline due to falling demand and high used car stocks.
On a happier note, manufacturers and dealers will be cheered by the findings of recent research by Black Horse Motor Finance which points to 50% of car consumers trading up to better and/or bigger vehicles, compared with just 6% who downsize to cheaper models. This implies that even if volumes go down, values may rise. Maybe the tendency for manufacturers to boost the size and specification of a model range during a revamp is based on sounder marketing evidence than was generally supposed.
Bentley prospects now looking more bullish
Latest news on the Bentley front must come as a relief to the marque's owners, Volkswagen. It seems to indicate that vehicle companies which succumb to the temptation of adding prestige marques to their portfolios do not always get it wrong.
After a long hard slog, Bentley last year achieved profitability for the first time since entering the German group's fold in 1998.
On an equally encouraging note, the company reports the likelihood of 'strong' profits for the current year thanks to brisk demand for the Continental GT coupé - whose sales expanded sixfold in 2004 to over 6,000 units - together with the launch of a four-door version later in the year.
As others in the super luxury category struggle to meet sales targets, it appears that Bentley has pitched its products, pricing and image just right to appeal to an appreciative worldwide audience.
More ominously, however, there are clear signals that Bentleys will begin to be assembled offshore in an attempt to ease capacity limitations at Crewe and satisfy burgeoning demand. If so, the location will be VW's Dresden plant where the less than successful Phaeton model is manufactured. While the desire to exploit market potential is understandable and the chances of quality being compromised through German assembly would be negligible, there are two clear dangers from such a move. First, a loss of Britishness, which surely is implicit with the Bentley brand. And secondly, a diminution of exclusivity.
Mini points the way with more 'tlc'
As some of the more dynamic members of the independent garage trade take advantage of new freedoms under the block exemption revisions, it is inevitable that vehicle manufacturers will do everything they can to keep profitable servicing and repair work within their franchised networks. This will be achieved by locking their customers as far as possible into attractive servicing deals which strike a balance between maintaining a high level of aftermarket profitability and encouraging brand loyalty. In particular, the roll-out of extended servicing packages is likely to provide a strong incentive for consumers to remain 'faithful' to franchised dealers.
An indication of likely developments comes from Volvo which offers private buyers of S40 and V50 models during the first half of the year the option of purchasing a three-year/36,000 mile servicing package for £100, compared with the true cost of around £800. Fleets benefit from an even more generous three-year/60,000 package.
However, Mini is undoubtedly the pathfinder through its 'tlc' option which, for a mere £150, provides customers with a five-year/50,000 mile transferable servicing package covering all labour and parts including lubricants.
Unsurprisingly the company reports a skyhigh take-up of 98%. And now Mini has upped the stakes through the option of an additional three-year agreement for £300 to cover years six to eight. Again this is transferable and, indeed, may be purchased by subsequent owners at any time before the expiry of the initial five-year cover.
More and more, the relationships between vehicle manufacturers and their customers are moving from the traditional supply of a consumer durable to the provision of personal motorised transport. Manufacturers and dealers who secure a competitive advantage in the future marketplace will almost certainly come from the ranks of those who move towards offering consumers a package which embraces all aspects of vehicle sourcing, running and ultimate disposal under a fixed time contract.
MG Rover to separate 'funky' from 'fogey'
MG Rover's efforts to provide the MG and Rover brands with clearer and more distinct identities and to promote each on an individual basis at the dealer level make considerable sense.
Notwithstanding a more or less common model range, the evidence to hand suggests that the two marques appeal to consumers with different aspirations: MG to those who are younger and more sporty, and Rover to those who are more conservative and traditionalist.
Under these circumstances it appears that MG has the potential to effect a more rapid and sustained recovery for the group as a whole than Rover. Whereas the latter brand's unit sales plummeted by 24% last year, MG's fell by a more modest 14%.
For MG Rover's hard-pressed UK franchised network, anything which offers the chance of stemming the decline and, hopefully, regaining lost market share, will be welcomed. At the same time there is an imperative to ensure that the additional costs implied by separating the marques are more than recouped through greater business. Otherwise, the temptation for some to jump ship and pursue other marques may become irresistible.
Meanwhile, the case for marketing and showroom separation would be even more compelling if models in the current MG range (the MGF aside) were not makeovers of existing and rapidly ageing Rover models. As MG Rover's new model development programme picks up speed under the SAIC joint venture with China, the ideal would be for a distinctly recognisable MG genus to be developed rather than persevere with badge engineering which has led to devalued marques.
And while on the subject of devaluation, why not rebrand the CityRover and future entry level and low cost models as Austins, and allow Rover to regain its traditional upmarket image?


text:
Embattled Congo musician, Koffi Olomide shares photo with his beautiful wife, Alaine
Didi Stone shared a photo of her embattled father, Koffi Olomide and mother, Alaine on Instagram moments ago. The 16-year-old captioned it: "My loves"
Meanwhile, the Congolese music maestro is a free man after spending two days of supposed 3-month jail term for assaulting one of his dancers at the Jomo Kenyatta International Airport, Kenya. He was released from prison on Thursday

subset: commoncrawl


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Offsite News
Halo: The Master Chief Collection - CG Trailer
Master Chief nukes some Covenant in this CG trailer for Halo: The Master Chief Collection.
Offsite News
Halo on Xbox One - CG Trailer
A beautiful CG trailer is out for the next Halo game from 343 Industries.
Halo 4: Spartan Ops Extended Behind the Scenes
343 Industries and Axis Animation talk about creating the unprecedented Spartan Ops content for Halo 4.


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Check in from 14h / Check out prior to 12h
Apartamentos NuriaSol: Find photos, reviews, information, amenities and compare prices for 3 stars hotels in Fuengirola, Spain.
This pet-friendly property is situated in Fuengirola and offers a Jacuzzi. It also features a kids pool, an outdoor pool and a sauna.
Hotel description
The property's apartments are modern and provide a kitchenette that is equipped with a dishwasher, a microwave and a refrigerator. They all offer a private bathroom, a walk-in closet and a sofa bed.
On-site dining options include a restaurant, which is a convenient spot to have a meal. A wide choice of cafés and restaurants are also found in the surrounding area.
Fuengirola's popular tourist spots are within close proximity to Apartamentos NuriaSol, with Los Boliches just a short walk away. Mijas and Malaga are situated an easy drive away.
Hotel features
Restaurant, Pet Friendly, Bar / Lounge, Air Conditioned, Refrigerator, Cable / Satellite TV, Microwave, Hair Dryer, TV, Shower, En suite, Private Bathroom, Vending Machines
Concierge, Elevator / Lift, 24 Hour Reception, Multilingual Staff, Safe-Deposit Box, Bicycle Rental, Photocopier
Swimming pool, Tour Desk, Massage / Beauty Centre, Sauna, Bath / Hot Tub, Playground, Jacuzzi, Massage, Pool Outdoor
Internet Connection (wireless)
Private Toilet, Child Pool, Poolside Bar
Availability and Prices
Booking Site
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Users who viewed Apartamentos NuriaSol also viewed these 3 stars Fuengirola hotels:
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Sta. Amalia 2 29640 Fuenguirola Malaga, Fuengirola
Sta. Amalia 2 29640 Fuenguirola Malaga, Fuengirola
Fuengirola Beach Hotel
Avda de la Encarnacion 2, Fuengirola
Avda de la Encarnacion 2, Fuengirola
Pension Santa Fe Hotel Fuengirola
Av Los Boliches 66, Fuengirola
Av Los Boliches 66, Fuengirola
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Nearest hotels
- Feria de Jerez Apartment
205 m
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321 m
364 m


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Villa de la Baie
From $155 / night
Description from the manager
Description from the manager
Bedrooms: 4/
Bathrooms: 3/
Sleeps: 7/
Type: House
Book this 4 bedroom, 3 bathroom house in Trou d'eau Douce today! A total of 7 people can sleep here comfortably. This property has been booked 3 times.
Guests can enjoy a pool, deck, and outdoor grill among other amenities offered by this rental.
Travelers are sharing their opinions on this property. It has an overall rating of 4/5 thanks to 1 review.
Costs vary, with the average weekly rate as low as $1,015.00 to as high as $1,715.00, depending on travel dates.
The owner responds to 100% of inquiries and last updated the property's calendar 4 months ago, so this rental may not be available for your requested dates, but please inquire to confirm.
About the manager
About the manager
Mauritius Direct
Mauritius Direct
- Response rate: 100%
- Response time: Within a day
- Calendar updated: 4 months ago
Overall rating:
4.4 / 5.0
Proximity to TripAdvisor's Top Trou d'eau Douce Attractions
Proximity to TripAdvisor's Top Trou d'eau Douce Attractions
Reviews (0)
Also consider
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Mooks Residence Pattaya
222/99 Chalermprakiat Pattaya 3rd Road Banglamung, Pattaya, Thailand Show Map
Check in from 12h / Check out prior to 12h
Mooks Residence Pattaya: Find photos, reviews, information, amenities and compare prices for 3 stars hotels in Pattaya, Thailand.
Mooks Residence Pattaya provides 3-star accommodation in Pattaya. The numerous amenities this modern hotel features include a concierge, a coffee bar and massage services.
Hotel description
There are a variety of facilities on offer to those staying at Mooks Residence, including luggage storage, a safe and internet. Guests are also welcome to make the most of the hotel's garden.
Residence Mooks's 65 modern rooms provide a kitchenette, an in-room dining area and a refrigerator, plus all the necessities required for an enjoyable stay. Each includes free tea and coffee making facilities as well as a private bathroom.
A satisfying breakfast is served every morning at Mooks Residence Pattaya, and there are numerous restaurants and cafés nearby. There is also the added advantage of an on-site restaurant.
Mooks Residence is situated amongst the area's popular tourist attractions, nightlife and shops, and Central Center Pattaya is within walking distance. The hotel also offers parking for guests.
Hotel features
Restaurant, Air Conditioned, Non-Smoking Rooms, Refrigerator, Cable / Satellite TV, Coffee / Tea Maker, Microwave, TV, CD Player, DVD Player, Shower, En suite, Private Bathroom, Coffee Shop/Cafeteria
Concierge, Elevator / Lift, Dry Cleaning, Safe-Deposit Box, Laundry service, Photocopier, Desk, Luggage Storage
Massage / Beauty Centre, Garden, Massage
High-speed Internet, Internet Connection (wireless)
Private Toilet
Availability and Prices
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Per room
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Users who viewed Mooks Residence Pattaya also viewed these 3 stars Pattaya hotels:
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Hyde Park Hotel
306.M.10 Soi 4 Thappra Road, Pattaya
306.M.10 Soi 4 Thappra Road, Pattaya
60 1 South Rd, Pattaya
60 1 South Rd, Pattaya
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Nearest hotels
- Walee's Place
303 m
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336 m


text:
Political Signs Must Go!
ED Magedson – Founder
Ripoff Report
Jasper Roofing6455 East 56th Avenue Commerce City, CO 80022 denver, Colorado United States of America
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This report was posted on Ripoff Report on 10/28/2012 09:22 AM and is a permanent record located here: http://www.ripoffreport.com/r/Jasper-Roofing/denver-Colorado-/Jasper-Contractors-REVIEW-Jasper-Contractors-executives-employees-go-above-and-beyond-th-961137. The posting time indicated is Arizona local time. Arizona does not observe daylight savings so the post time may be Mountain or Pacific depending on the time of year.
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muted item in
Michael Dwayne Vick (born June 26, 1980) is an American football quarterback who is a free agent. Vick played college football at Virginia Tech, where as a freshman he placed third in the Heisman Trophy balloting. He left after his sophomore year to enter the NFL and was drafted first overall by the Atlanta Falcons in the 2001 NFL Draft, the first African-American quarterback ever to be taken first overall. In six seasons with the Falcons, he gained wide popularity for his performance on the field, and led the Falcons to the playoffs twice. During his tenure with Atlanta, Vick was selected to three Pro Bowls. He has also played for Philadelphia Eagles, New York Jets and Pittsburgh Steelers.
In April 2007, Vick was implicated in an illegal interstate dog fighting ring that had operated on his property for five years. A federal judge noted that he had promoted, funded, and facilitated a dog fighting ring on his property, and had engaged in hanging and drowning dogs who did not perform well. He also had failed to cooperate fully with police. In August 2007, Vick pleaded guilty to federal felony charges and served 21 months in prison, followed by two months in home confinement. Hurt financially by the loss of his NFL salary and product endorsement deals, combined with previous financial mismanagement, Vick filed for Chapter 11 bankruptcy in July 2008. Falcons owner Arthur Blank did not want Vick on his team, so the team released Vick after failing to trade him. He signed with the Philadelphia Eagles and was reinstated in Week 3 of the 2009 season.
In 2010, Vick became the Eagles' starting quarterback and led them to the 2011 NFL Playoffs as NFC East Champions. Despite starting only 12 games, Vick set career highs in passing yards, passing percentage, QB rating, passing touchdowns, and rushing touchdowns. He was named the 2010 NFL Comeback Player of the Year and was selected to his fourth Pro Bowl. Vick is the NFL's all-time leader among quarterbacks in career rushing yards.


text:
List all words starting with sleaziest
Only the word sleaziest was found, nothing longer.
Some random words: llama vav luau gweduc drab oil gumless
This is not a dictionary, it's a word game wordfinder.
- Help and FAQ - Examples - Home
Privacy and Cookies Policy - Share - © Copyright 2004-2016 Morewords.com - 5.566mS


text:
Translation is the communication of the meaning of a source-language text by means of an equivalent target-language text. Whereas interpreting undoubtedly antedates writing, translation began only after the appearance of written literature; there exist partial translations of the Sumerian Epic of Gilgamesh (ca. 2000 BCE) into Southwest Asian languages of the second millennium BCE. Translators always risk inappropriate spill-over of source-language idiom and usage into the target-language translation. On the other hand, spill-overs have imported useful source-language calques and loanwords that have enriched the target languages. Indeed, translators have helped substantially to shape the languages into which they have translated. Due to the demands of business documentation consequent to the Industrial Revolution that began in the mid-18th century, some translation specialties have become formalized, with dedicated schools and professional associations.
Contributions by Grstain, 126.96.36.199, and Altenmann.


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What were your favourite radio stations in the GTA series?
Mine were:
- It's Unleashed FM (GTA 1)
- King 130.7 (GTA 2)
- Head Radio (GTA III/LCS) [only because it was the closest to a rock station]
- V-Rock (GTA VC/VCS)
- Radio X (GTA SA)
- Radio Broker (GTA EFLC)
- Anvil (GTA CW)
- Channel X & VBR (GTA V)


text:
Credit Insurance
Coface's solution to prevent and cover non-payment risks for your invoices, in Romania and internationally
Four Good reasons to CHOOSE CREDIT INSURANCE Product line
- A comprehensive policy by including clients' analysis and debt collection process within the contract
- Country risk analysis to protect your business against potential debtors
- Economies of scale
- A powerful international network
Credit Insurance helps you manage the credit you extend to your clients and allows you to protect your trade receivables against the risk of customer default. Offered to all companies, from SMEs to multinationals, it is a scalable and highly comprehensive policy.
Comprehensive, since you benefit from:
- the guarantee of your buyers and the possibility of monitoring their development in real time;
- the indemnification of your unpaid invoices;
- comprehensive financial information on your sales partners (prospects, suppliers etc.) in order to make the best choices: Debtor Risk assessment, @rating credit opinion, in-depth report etc.;
- professionally handled collection of your unpaid invoices around the world.
Scalable, since you can choose:
- to cover your home country and/or exports;
- to centralise or decentralise the management of your policy;
- to opt for ground-up cover or an excess of loss policy;
- your level of autonomy in the credit decision-making process;
- tailored options such as cover for your legal disputes, production period insurance, delivery and shipping guarantees etc.
It allows you to optimize your credit risk management, to guarantee local and export sales and also helps you expand your business within higher-risk countries and new business partnerships.
Coface insures the trade receivables of a Romanian company that imports home appliances. This company is on the verge of obtaining its first major contract with a mass market DIY retailer.
After an in-depth analysis of this retailer's situation, Coface warns the company of the customer's non-payment risk. The CEO, is nevertheless prepared to proceed with this order, which alone would increase the company's annual sales by 30%.
After further reflection, the CEO decides to nevertheless request a meeting with a Coface analyst, who convinces him emphatically of imminent and serious difficulties with the prospect. In the end, the company decides to sell less, but against advance payment.
The retailer's group is filing for insolvency in the next months, whilst the company based on Coface's know-how has avoided a high bad debt.


text:
Article Title
Program Web Address
Perceptions of managers and employees on topics related to quality and quality service in a hotel were studied to define the term "quality" and the activity of "quality service" delivery, looking at differing definitions of the terms and the activity and the identification of problem issues relating to training, communication, recognition, and department coordination. Recommendations for action included changes in the training program, a reemphasizing of the incentive programs, the development of Quality Improvement Teams, improved communication, and increased service delivery leadership.
Recommended Citation
George, R. Thomas
"An Examination of Quality Service Perceptions in a Hotel,"
Hospitality Review:
Vol. 16:
2, Article 3.
Available at: http://digitalcommons.fiu.edu/hospitalityreview/vol16/iss2/3


text:
The IRC4000B Bathroom Lever On Backplate Handle is the perfect piece to complete any styled internal door as it has been manufactured from solid, high quality Zinc which is completed with a shimmering Pewter finish and all of the required screws and fixings. This Cage Backplate Handle is available in a latch and lock variant and will also add a expensive look and feel to your home, without you having to pay the dreaded expesnive price tag.
FREE Super Saver Delivery On ALL Orders Over £800
To take advantage of this amazing offer, simply add the items you wish to purchase into your basket your order total will be amended to show FREE Shipping if you exceed £800+VAT.
Express Service
Please refer to the stock message listed above for an estimated delivery lead time. We always recommend that you contact our Customer Services team before placing any orders. We will check each individual product's stock status to ensure that it can be delivered on time.
Delivery Service
For full details on our deliveries, please see our Delivery Service page.
Size Guide
Please Click Here to view our Door Size Guide
Returns & Cancellations
For full details on returns, please see our Returns page.


text:
The nail care menu at Atlanta's Salon Red offers two intriguing option: the $45 Bronzed and Buffed Manicure and the $70 Bronzed and Buff Pedicure. Both are spa-style treatments that include targeted sunless tanning.
How to maintain that golden glow with our submitting to the harsh rays of the sun? The nail care menu at Atlanta's Salon Red offers two intriguing option: the $45 Bronzed and Buffed Manicure and the $70 Bronzed and Buff Pedicure. Both are spa-style treatments that include targeted sunless tanning. "These services typically appeal to mature women who have difficult applying sunless tanning products on themselves or who just want some color on their extremities while they wear short sleeves or shorts," says cosmetologist Angie Gross.
For the pedicure service - which takes 60-90 minutes - the client lays on an inclining spa bed with a bolster under her knees. A pedicure tub is set below the bolster for the client to soak in. After the callus work is done, the large are exfoliated up to mid-thigh. Next, a moist hot towel is used to remove the exfoliant, followed by a dry towel. The pedicure bowl and bolster is then removed, and using gloves, the technician applies the tanning product starting at the feet and massaging upward. After passing the knee, the product is "feathered" upward to avoid a distinct line. With the knees bent and the bottom of the feet flat on the service bed (as if the client was on the beach), the nail and cuticle work is done. Finally a moisturizing is gently applied to the bottom of the feet and the toenails are polished.
InternatioNAILS: Vietnam13 photos
Nail Art for Little Princesses15 photos
There are different kinds of spas and there is no absolute definition; generally speaking it is a salon-type environment where patrons partake in...
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Gemon-4 ion engine
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The Gemon-4 was a capital-scale ion engine manufactured by Cygnus Spaceworks.
Four Gemon-4 ion engines were used for emergency or supplementary sublight drives on Imperial-class Star Destroyers.
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Angry homeowner overrun with rats after recycling plant leaves 20ft high 'ocean of rubbish' at bottom of garden
- Cafe boss Howard Hudson moved into the £70k property in Blackburn, Lancashire, ten years ago when there was a recycling factory next door
- The building was torn down and replaced by a mound of plastic
- 'Rat infested' pile of plastic scrap now 20ft high at the back of his garden
When home owner Howard Hudson moved in next door to a plastic recycling centre he thought he had found tidy and environmentally-friendly neighbours.
But the frustrated resident has instead found himself living next to a growing rubbish dump that now towers 20 feet high at the back of his garden.
Cafe boss Mr Hudson, 57, moved into his £70,000 terraced house ten years ago not realising bosses at the recycling depot were about to expand.
A garden view: Howard Hudson in his back garden with views over the V10 Polymers plastic recycling site
Home sweet home: Mr HUdson moved into his £70,000 property in Blackburn, Lancashire, ten years ago when there was still a recycling factory building next door
Aerial view: The A marker shows Mr Hudson's property next to the plastic recycling plant
But now hundreds of tonnes of plastic scrap are piled up 20 feet high behind his back wall in Blackburn, Lancashire.
Mr Hudson is now urging for action from local councillors and the Environment Agency against officials at V10 Polymers.
He said: 'When people are driving past they think it is a tip - but it's not, it's a plastic recycling centre. But I'm not surprised people think that it is a tip because it looks like a dumping ground.
Frustrated: Mr Hudson says the expansion of the recycling plant has made his life a misery
'It is an absolute disgrace - it looks really awful and can't carry on living like this.
'It used to be quiet and tidy here but not now. This is the mess that I see over my back yard wall and every morning through the bedroom window.
'Since the company has grown, residents around here have been left with noisy wagons and this eyesore. We are going to start a petition and send it to the council. I was hoping to emigrate to Gambia next year but I will never be able to sell the house.
'My son is in the building trade and he said the house has devalued by £20,000. The council needs to do something. When I moved in it was not like this. I just don't know what to do because it's really getting me down.'
Mr Hudson has also raised concerns about the health risks posed by the rat infested tower of rubbish.
He added: 'There are rats everywhere and I've even had to get two cats because we were getting so many of them.
'It is only a metre away from my back
yard. We have seen rats running about all over, you wouldn't believe
the amount the cats kill.
'This is meant to be a plastic recycling centre but I don't see much recycling going on.
'Some say its like an ocean of plastic but I would say it was worse than that - it's like a tidal wave when you look out at it.
'Even the environmental health said that it was bad and he said that in his eyes it was illegal but they've said what is happening is not illegal.'
Untidy: The view from Mr Hudson's back garden shows huge piles of plastic covering the V10 Polymers site
Health concerns: Mr Hudson claims the mound of plastic recycling at the plant is infested with rats and now owns two cats to help cope with the problem
Big loss: Mr Hudson claims the state of the recycling plant has devalued his property by £20,000
Mr Hudson said the problems started when a factory was torn down on the site and replaced with the dump.
He said: 'When I moved in 10 years ago it was summer and everything was flowering and I had a reasonable view looking out over the factory and it was fine - but not anymore.
'They found asbestos in the roof and demolished it and this started piling up. If the factory was still there it wouldn't be like this. They wouldn't be able to pile all this stuff up in a factory.
Campaign: Mr Hudson is now asking his local council and the Environment Agency to take action against V10 Polymers
'There was a wall behind my yard which went straight across but they demolished that, I had to stop them demolishing the wall in front otherwise the rubbish would have been up to my back yard.
'I kept thinking that something would be done about it because it was getting out of hand but nothing was ever done about it.
'In winter when all the leaves have fallen and there aren't my roses and clematis it looks really bare and all you can see is that eyesore.
'I can't get out because no one will want to buy the house and have this in their back yard. It just seems to be getting worse. I can't win and it's so frustrating.
'I don't look out of my window anymore I'm at my wits end. I have blinds so I can't see out at that eyesore.'
Neighbour Diane Hargreaves said: 'I knew V10 was there when I moved in, but cannot believe how bad it is.
'The view is dreadful and the noise from lorries, especially in the morning is terrible. I want the company or the council to do something about it. Even a wall or screen between us and the recycling site would be an improvement.'
V10 Polymers which handles in excess of 5,000 tonnes of plastic scrap per year has been operating legally at the site for many years and is not controvening any planning rules. It said its recycling operations met Environment Agency and borough requirements.
Manager David Holt said: 'We have controlled facilities for our waste and the items that we recycle disposed of accordingly. And as for the rats we are situated right next to the canal.'
Regenerating: Mr Hudson's property is located within the Waterside regeneration area in Blackburn, Lancashire
Legal: V10 Polymers have been operating at the site for many years and is not contravening any planning laws
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Description of this paper
Assignment 3: Risk Management and Effective Communication Planning
Assignment 3: Risk Management and Effective Communication Planning;Due Week 8 and worth 140 points;Imagine that you have been asked to participate as a project manager for a website renovation project for a clothing department store. The Website will be mobile-user friendly and will target global customers to expand business overseas. The scope requires your project team to decompose the project into the following phases: design a sample Website, attain consensus on the design from upper management, develop the Website, test the Website functionality, and transition Web services to the new Website. A project of this magnitude carries many risks. For instance, the marketing department has a habit of adding requirements and requesting features toward the end of the project.;System network administrators have expressed their concerns for cyberattacks and other cyberthreats that are prevalent across the industry. The IT Operations team also has provided feedback and is worried about having enough bandwidth for the additional global visitors who will now be accessing the Website.;For this assignment, you will be expected to develop a risk management plan and assist in coordinating communications amongst the project stakeholders.;Write a three to five (3-5) page paper in which you;Develop a risk assessment using the table format below to;Select at least two (2) risks that could take place for each phase of the project which includes;Designing a sample Website;Attaining consensus on the design from upper management;Developing the Website;Testing the Website functionality;Transitioning Web services to the new Website;Identify a risk owner and his / her role in the project.;Describe a strategy for managing each risk.;Describe the response to the risk.;Identify the resources that would be required to provide a risk response plan.;Note: Document the risk assessment by using the following table format.;Risk Management Plan;Risk;Category;Risk;Owner / Role;Strategy for Managing Risk;Response;Resources Required;Designing a sample Website;Attaining consensus on the design from upper management;Developing the Website;Testing the Website functionality;Transitioning Web services to the new Website;Consider the following communication requirements;The project manager will need to present the project status to executive management on a weekly basis. The project manager will need to provide a written status report to the Chief Financial Officer on a monthly basis.;The Website manager will be notified via email on all Web services requests required for the project. Request notifications will include time constraints and impacts, which will identify the urgency of the request for service.;The project team will have weekly update / status meetings to review completed tasks and determine current work priorities. Minutes will be produced from all meetings.;The project manager will provide the project sponsor, executives, and project team with project team minutes and steering committee status reports.;The financial analyst assigned to this project will need to provide the project team a report of actual costs that are tied to the project.;An enterprise newsletter is expected to be produced by the project team to inform all employees of the undergoing changes to the Website. The newsletter should be attached to the employee paychecks, which get distributed every two weeks.;List at least three (3) benefits that could be achieved by anticipating possible risks. Use the completed risk management plan to provide an example.;Explain how a properly developed risk management plan could help functional resources and executives, external to the IT Project Management team, to mitigate possible delays or increased costs.;Develop a project communications plan based on the completed risk assessment, which describes the various communications that will be produced throughout the project.;Note: Document the plan by using the following table format.;Project Communication Plan;Stakeholder;Report/Document;Description and Format;Time Frame / Frequency;Benefit to the Project;Evaluate the role of communications management within project management.;Describe at least three (3) benefits that a project team could achieve by having properly planned communications. Use the completed project communication plan to provide an example.;Suggest how communications management could optimize communications within the project team and other stakeholders.;Use at least three (3) quality resources in this assignment. Note: Wikipedia and similar Websites do not qualify as quality resources.;Your assignment must follow these formatting requirements;Be typed, double spaced, using Times New Roman font (size 12), with one-inch margins on all sides, citations and references must follow APA or school-specific format. Check with your professor for any additional instructions.;Include a cover page containing the title of the assignment, the student?s name, the professor?s name, the course title, and the date. The cover page and the reference page are not included in the required assignment page length.;Include charts or diagrams created in Excel, Visio, MS Project, or one of their equivalents such as OpenOffice, Dia, and Open Project. The completed diagrams / charts must be imported into the Word document before the paper is submitted.;The specific course learning outcomes associated with this assignment are;Explain and apply the phases of the project management life cycle.;Identify project risk, and the techniques for ensuring project risk is managed and controlled in a technology setting.;Identify and plan communication strategies for project constituents and stakeholders across global teams and those internal to the organization.;Use technology and information resources to research issues in information systems.;Write clearly and concisely about Information Technology Project Management topics using proper writing mechanics and technical style conventions. Click here to view the grading rubric.
Paper#66544 | Written in 18-Jul-2015Price : $22


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The stock of Merrimack Pharmaceuticals Inc (NASDAQ:MACK) is a huge mover today! About 735,315 shares traded hands. Merrimack Pharmaceuticals Inc (NASDAQ:MACK) has declined 34.06% since March 11, 2016 and is downtrending. It has underperformed by 39.52% the S&P500.
The move comes after 9 months negative chart setup for the $644.62 million company. It was reported on Oct, 14 by Barchart.com. We have $4.52 PT which if reached, will make NASDAQ:MACK worth $51.57 million less.
Analysts await Merrimack Pharmaceuticals Inc (NASDAQ:MACK) to report earnings on November, 14. They expect $-0.27 EPS, up 28.95% or $0.11 from last year's $-0.38 per share. After $-0.40 actual EPS reported by Merrimack Pharmaceuticals Inc for the previous quarter, Wall Street now forecasts -32.50% EPS growth.
Merrimack Pharmaceuticals Inc (NASDAQ:MACK) Ratings Coverage
Out of 5 analysts covering Merrimack Pharmaceuticals (NASDAQ:MACK), 2 rate it a "Buy", 0 "Sell", while 3 "Hold". This means 40% are positive. Merrimack Pharmaceuticals has been the topic of 8 analyst reports since August 12, 2015 according to StockzIntelligence Inc. Mizuho maintained the shares of MACK in a report on Wednesday, December 23 with "Buy" rating. Robert W. Baird initiated the shares of MACK in a report on Friday, May 27 with "Neutral" rating. As per Friday, October 7, the company rating was downgraded by JP Morgan. Oppenheimer reinitiated Merrimack Pharmaceuticals Inc (NASDAQ:MACK) on Wednesday, August 12 with "Outperform" rating. The firm earned "Neutral" rating on Friday, August 19 by BTIG Research. On Wednesday, August 12 the stock rating was maintained by Mizuho with "Outperform". The stock of Merrimack Pharmaceuticals Inc (NASDAQ:MACK) has "Buy" rating given on Tuesday, August 11 by Brean Capital. Oppenheimer maintained it with "Outperform" rating and $15 target price in Tuesday, October 27 report.
According to Zacks Investment Research, "Merrimack Pharmaceuticals, Inc., is a biopharmaceutical company focused on the discovery, development and preparation to commercialize innovative medicines paired with companion diagnostics for the treatment of serious diseases, with a special focus on cancer. Merrimack Pharmaceuticals, Inc. is headquartered in Cambridge, Massachusetts."
Insitutional Activity: The institutional sentiment increased to 1.17 in Q2 2016. Its up 0.09, from 1.08 in 2016Q1. The ratio increased, as 28 funds sold all Merrimack Pharmaceuticals Inc shares owned while 25 reduced positions. 20 funds bought stakes while 42 increased positions. They now own 83.26 million shares or 1.81% more from 81.78 million shares in 2016Q1.
Moreover, Savings Bank Of New York Mellon has 0% invested in Merrimack Pharmaceuticals Inc (NASDAQ:MACK) for 678,029 shares. Highbridge Mngmt Ltd Com has 15,837 shares for 0% of their US portfolio. Jacobs Levy Equity Mgmt has 0% invested in the company for 42,400 shares. Da Davidson And has invested 0% of its portfolio in Merrimack Pharmaceuticals Inc (NASDAQ:MACK). The Connecticut-based Cubist Systematic Strategies Limited Liability has invested 0.01% in Merrimack Pharmaceuticals Inc (NASDAQ:MACK). Pacad last reported 0.01% of its portfolio in the stock. Perceptive Limited Com holds 0.02% of its portfolio in Merrimack Pharmaceuticals Inc (NASDAQ:MACK) for 50,000 shares. Franklin accumulated 1.30 million shares or 0% of the stock. Vanguard Gp holds 0% of its portfolio in Merrimack Pharmaceuticals Inc (NASDAQ:MACK) for 10.20 million shares. Parametric Assoc Lc owns 24,488 shares or 0% of their US portfolio. Balyasny Asset Management Lc has 33,166 shares for 0% of their US portfolio. Css Limited Liability Corporation Il holds 0% or 11,000 shares in its portfolio. Citigroup owns 27,121 shares or 0% of their US portfolio. Jane Street Grp Ltd Liability accumulated 17,755 shares or 0% of the stock. Clear Harbor Asset Mngmt Limited Liability Corporation, a New York-based fund reported 18,300 shares.
Insider Transactions: Since July 25, 2016, the stock had 0 buys, and 1 sale for $275,000 net activity. Shares for $275,000 were sold by Schoeberl Birgit M..
More recent Merrimack Pharmaceuticals Inc (NASDAQ:MACK) news were published by: Fool.com which released: "Why Merrimack Pharmaceuticals Inc. Rose 38% in September" on October 10, 2016. Also Wsj.com published the news titled: "Merrimack Pharmaceuticals Cuts Jobs; CEO Resigns Amid Restructuring Effort" on October 03, 2016. Marketwatch.com's news article titled: "Merrimack Pharmaceuticals CEO resigns as company cuts 22% of workforce" with publication date: October 03, 2016 was also an interesting one.
MACK Company Profile
Merrimack Pharmaceuticals, Inc., incorporated on July 6, 2010, is a biopharmaceutical company. The Firm is engaged in discovering, developing and commercializing medicines consisting of therapeutics paired with companion diagnostics for the treatment of cancer. The Company's therapeutic oncology candidates in clinical development include MM-398, MM-302, MM-121, MM-141 and MM-151. The Firm is developing in vitro and in vivo diagnostics for use with each of its oncology therapeutic product candidates. The Company's in vitro diagnostic agents employ biophysical or biochemical markers of cancer, or biomarkers, which the Company has identified using its systems biology approach. The Company's in vivo diagnostics take the form of imaging agents that may help identify patients likely to benefit from its therapeutic products by measuring deposition of its products in the tumor.
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149 Altus Lane,Mannford OK, 74044
3 beds , 2 Full/1 Half baths
1,854 sq. ft
Status: Active
Berkshire Hathaway HomeServices Anderson Properties
(405) 755-9052
Last Updated: 12/6/2016 12:01 PM
Description for 149 Altus Lane Mannford, OK 74044
Lake home on large corner lot, 1 mile from Cross Timbers marina, updated inside & new roof, well maintained, security system, fireplace, fenced yard, shed and large safe room.
Listing Information
Water Softener, Gas Water Heater
Electric, Cable TV, Natural Gas
School Information
Room Information
Interior Features
Dishwasher, Disposal, Microwave, Range-Oven
Carpet, Wood
Central Air, Ceiling Fan(s)
Electric Heating, Central
Insulated Window
1, Heatilator, Insert, Wood-burning
Security System
Internet Connection, Smoke Alarm
Exterior / Lot Features
2 Garage Spaces, Attached Garage
Chain Link
Shed, Insulated Doors, Overhead Doors, Corner
Financial Considerations
Inside AccessTM
Current market conditions for 149 Altus Lane
Active Market Trends
Source:MLS DATA
Median list price$141,900
Days on market127
Properties for sale29
Sold Market Trends
Source:MLS DATA
Median sold price$133,000
Sales to list price9,692.0%
Properties sold21
Median sq ft price$75
Arrows indicate 90 day trend
Listing Price History for 149 Altus Lane
Mannford Real Estate
Mannford is located in Oklahoma. Mannford, Oklahoma 74044 has a population of 3,136.
The median household income in Mannford, Oklahoma 74044 is $48,829. The median household income for the surrounding county is $43,363 compared to the national median of $53,046. The median age of people living in Mannford 74044 is 42.8 years.
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Monday On The Show: Dr. Oz
Anything you have always wanted to ask Dr. Oz? Now is your chance!
Valentine will have Dr. Oz on the show Monday morning after 7:30.
Write your question below and we might ask it on the air!
Tune in to Valentine in the Morning every weekday morning from 5am to 10am!
Join us for lots of fun, great music, and celeb interviews! Play Battle Of the Sexes every weekday at 7:10a and again at 8:10a!
Valentine is the host of Valentine in the Morning and signs his emails "Colin's Daddy, Leilani's Husband, Red Sox Fan". He has worked in radio since he was 15, starting at a little station in Connecticut.
The little known facts category about Valentine include: former police officer, USO Entertainer (with over ten overseas tours), comedian, arachnophobia-sufferer, and a man's man (he wrote that last part).
Valentine is a winner of the ABC Radio Personality of the Year, RMA Personality of the Year, and Radio and Records Personality of the Year Nominee. Valentine's most important attribute on air is his desire to be open with his listeners and to share his real life, thereby allowing the listener to share theirs as well.
Jillian Escoto is the pop culture princess of Valentine in the Morning. Jill is born and raised in Southern California and spends most of her time keeping up with reality TV and celebrities - so you don't have to. After a few years of dating disasters, Jill is in a new relationship with her boyfriend Ryan (who just so happens to be Kevin's brother!) Jill has worked with Valentine for over 11 years.
Follow Jill On Twitter
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Email Jill
Kevin, a Chicago native, sat in on the show one day & just never left. While he has hosted television shows on MTV, NBC & Lifetime... he's probably best known for creating the game "Pig in the Hole." He starts every day with a tall glass of Bloody Mary mix & he wears 2 pairs of socks at all times.
Follow Kevin On Twitter
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Meet The Rest of the Team


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This is my sister, Taylor. Taylor is 17 years old in a IB program in high school. The IB program is very challenging, and is very hard to graduate from. The four letters above are recruitments letters from the amazing, top IVY leagues schools in the United States.
Taylor is a full African American citizen here in the United States. I couldn't be any more proud to have an amazing sister who represents the intelligence and strength we have in our Black community today. For anyone who downgrades us into a stereotype saying how we are " useless " or " ignorant " can simply keep their disrespectful opinions to themselves. Nothing can top beauty and brains.


text: after i select portraid/landscape it shows the controller for 1 second then closes the entire app. ive tried a .iso and a .img. i set permission of both the rom folder and the psx4iphone folder to 0777 (tried 0755 too didnt work) scph1001.bin is int he /roms/psx folder. what did i do wrong im using 64gb 3rd ipod touch with psx4iphon 1.1.0


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March 5, 2008
ROBERTA TEPPER, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF LYNDA TEPPER, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,v.RICARDO URDINARAN, M.D., DEFENDANT-RESPONDENT/ CROSS-APPELLANT, AND MEDICAL ONE, MICHAEL DUNN, M.D., ANILA AMIN, M.D., PINAKIN AMIN, M.D., CARL DEHYLE, D.O., ANN MURRAY, P.A., AND DAVID GABROS, M.D., DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-1205-02.
Argued telephonically February 1, 2008
Before Judges Lintner, Sabatino and Alvarez.
Plaintiff, Roberta Tepper, administrator ad prosequendum for the Estate of Lynda Tepper, appeals from a no cause for action judgment and an order denying her motion for a new trial following an adverse jury verdict in favor of defendant, Dr. Ricardo Urdinaran, in a medical malpractice case brought on behalf of her deceased sister Lynda.*fn1 Plaintiff asserts trial error. Defendant cross appeals, asserting that the trial judge erred in declaring him not available for trial. We reverse the judgment and remand for a new trial and dismiss defendant's cross-appeal as moot.
We recite the relevant facts established at trial. On November 4, 1999, thirty-eight-year-old Lynda Tepper was seen by Dr. Michael Dunn at Medical One with complaints of constipation and blood in her stool. Lynda had survived a brain aneurysm five years earlier that left her with some short-term memory problems. Dunn performed a hemocult test and confirmed that she did in fact have blood in her stool. Dunn then performed an anoscopy, a procedure to view inside the rectum, and determined that she did not have any internal hemorrhoids. Dunn noted in a report dated July 19, 2002, that he referred her to defendant, "a colo-rectal surgeon," for follow-up diagnosis and treatment of her rectal bleeding.*fn2
Lynda saw defendant on November 8, 1999. Based solely upon a visual external examination and a subsequent digital examination, defendant concluded that Lynda had minimally developed external hemorrhoids, as well as "large and minimally tender" internal hemorrhoids "with no evidence of recent thrombosis [or] ulceration." Notably, defendant did not perform an anoscopy or any other examination that would have permitted him to view inside her rectum. Additionally, defendant concluded that Lynda did not have any blood in her stool, although he did not perform a hemocult test. He diagnosed "rectal bleeding of undetermined etiology" and scheduled a flexible sigmoidoscopy and barium enema.
Defendant provided Lynda with written instructions on how to treat her hemorrhoids and instructed her to schedule a flexible sigmoidoscopy and barium enema. Lynda wrote on the instructions "F 7th" as a reminder of her appointment for the sigmoidoscopy. According to Lynda's mother, Sandra Readler, Lynda would jot things down to make up for her short-term memory problems. Although defendant wrote to Dunn on November 8, 1999, and advised that his impression was that Lynda had "a rectal bleeding of undetermined etiology," Lynda left defendant's office that day with the understanding that her bleeding was due to hemorrhoids. She told her mother and sister, Roberta, that her bleeding was due to her hemorrhoids.*fn3
On December 7, 1999, Lynda went to Shore Medical Hospital for her scheduled sigmoidoscopy. According to Lynda, she had prepared her colon as instructed for the test. However, after inserting the scope in Lynda's rectum, defendant encountered a blockage. Lynda claimed that defendant suddenly took off his gloves, threw them to the ground, angrily informed her that she had wasted his time by not preparing properly, and directed her to return another day. Her sister testified that Lynda told her that defendant stormed out of the room and left the tube inside her. Lynda did not go back to defendant because she felt humiliated by defendant's conduct.
Lynda went home very upset and told Roberta and Readler, what had happened. Unaware that there was any need to rush, Readler called Lynda's neurologist, Dr. Rodney Bell, and scheduled an appointment for Lynda. Bell then arranged for Lynda to see Dr. Franz Goldstein, who referred her to Dr. Anthony Infantolino at Thomas Jefferson University Hospital in Philadelphia for a colonoscopy. Infantolino performed the procedure on April 24, 2000. When asked on direct examination*fn4
why she waited six months to have a colonoscopy, Lynda testified that defendant told her that her bleeding was from her hemorrhoids and he did not indicate that there was any urgency, thus she treated herself with Preparation H.
Infantolino discovered a lesion obstructing Lynda's sigmoid colon, twenty to twenty-five centimeters from the anal verge. Notably, in his report, Infantolino stated that he was barely able to "pass through the lesion and pass the scope to the cecum" and that "[t]he prep on the proximal side of the lesion was poor."
The following day, Lynda underwent a left hemicolectomy. The surgeon, Dr. Robert Fry, determined that the cancerous tumor cells had perforated the wall of her colon. He removed the tumor, Lynda's left ovary and ureter, as well as twenty-two lymph nodes, eight of which proved to be cancerous. Lynda's cancer was ultimately categorized as a stage three, T4 cancer (the most advanced type of primary cancer). Notably, in his report, Fry commented that Lynda had been experiencing a dull pain in her left lower abdomen for approximately one month prior to her surgery.
Lynda subsequently underwent repeated rounds of chemotherapy and radiation, and she was pronounced cancer-free in November 2000. However, new malignancies subsequently developed in her liver, lungs, spine, collarbone, and eye. She passed away on August 23, 2002.
Dr. Richard Goldstein, a board certified general and colorectal surgeon, testified on behalf of plaintiff. Goldstein summarized what he believed to be defendant's failure to properly treat Lynda:
I have two major opinions concerning [defendant's] care. The first was that he failed to diagnose her cancer when he should have, and the second is that he conveyed to her . . . that she had hemorrhoids as a source of her bleeding when she could not possibly have had hemorrhoids and thereby took away any sense of urgency for her to seek follow up care regarding her bleeding.
Noting that it was not possible to make a diagnosis of internal non-thrombosed hemorrhoids simply through a digital exam, Goldstein explained how an anoscope worked and that it was used to look inside the rectum and diagnose internal hemorrhoids. He testified that it would be "impossible for [defendant] to make a diagnosis . . . of internal hemorrhoids based upon his finger or digital rectal examination."
Nonetheless, according to Goldstein, defendant communicated this ill-founded diagnosis to Lynda, provided her with documentation on how to treat her supposed hemorrhoids, and led her to understand that her bleeding was caused by hemorrhoids. In support of that opinion, Goldstein cited the written instructions defendant gave to Lynda for treating hemorrhoids. He also cited defendant's discovery deposition, reading the following question and defendant's answer to the jury:
Question: Why were her problems probably caused by hemorrhoids? Answer: Why? She had hemorrhoids large enough that could explain the rectal bleeding.
According to Goldstein, defendant also deviated from the accepted standard of care by not: (1) attempting to complete the sigmoidoscopy on December 7, 1999; (2) giving Lynda another enema; or (3) attempting to flush out or bypass the stool after inflating her colon. He stated that poor preparations for sigmoidoscopies occur on a daily basis. Goldstein believed that the photographs taken by defendant using the sigmoidoscope indicated that he could have bypassed the stool. He acknowledged that stopping and rescheduling a sigmoidoscopy is generally an option, but stated that it was not appropriate here since Lynda had already waited one month and had symptoms consistent with colon cancer. He noted that, at defendant's deposition, defendant admitted that he had not considered the possibility that a tumor had interfered with Lynda's preparation. Defendant also did not impress upon Lynda the importance of returning for another scope as soon as possible. In Goldstein's view, defendant's failure to re-prep Lynda and complete the sigmoidoscopy increased the risk posed by her cancer by allowing it time to progress to the point of perforation.
Summarizing his opinion at the conclusion of his direct testimony, Goldstein testified that defendant breached the standard of care in diagnosing Lynda with hemorrhoids, as well as by not bypassing stool when performing the sigmoidoscopy. He concluded that both deviations increased the risk and were substantial factors in "the harm and death" by allowing the cancer to perforate the colon.
Dr. Barry Singer, an oncologist, testified on behalf of plaintiff that, because Lynda's cancer was not diagnosed until April 2000, her chances of survival were decreased by fifty-five to sixty-five percent to between ten and twenty percent. He explained that the most critical factor in assessing her chances was the occurrence of the perforation in her colon, which allowed cancer cells to disperse into her body. Based upon Lynda's statement in April 2000 that she had been experiencing dull pain in the left lower abdomen for approximately one month, Singer concluded that the perforation developed at that time. He pointed out that, had the perforation developed months earlier, her symptoms would have been much more severe.*fn5
According to Singer, had Lynda been diagnosed four-and-one-half months earlier, her colon would not have perforated, her tumor would have been at most a T3 and much smaller, there would have been fewer than four lymph nodes involved, and her later metastases could have been prevented. He opined that Lynda would have had a seventy percent chance of a disease-free, five-year survival had she been diagnosed in December 1999 with no perforation and only one affected lymph node. He stated that, if two, three, or eight nodes had been affected at that time, her chance of survival would have decreased to sixty percent, fifty-five percent, and thirty-five percent, respectively. Singer asserted that, if all eight lymph nodes had been affected in December, Lynda would have had only a thirty to forty percent chance of survival.
Singer conceded that, oftentimes, a four-month delay in diagnosis does not make a difference when dealing with colon cancer. He acknowledged that Lynda's cancer was not more aggressive than the average colon cancer. He further admitted that if the perforation had occurred in December there would have been no difference in Lynda's outcome. Lastly, Singer conceded that colon perforations are not always immediately symptomatic.
Defendant did not appear at trial. However, Carolyn Rusek, the nurse who was present during the aborted sigmoidoscopy, testified for the defense. Rusek related that, in all the years that she has been involved in the endoscopy suite, she did not recall a doctor storming out of the room leaving the scope inside a patient. Although Rusek prepared a note following the appointment that stated that defendant discussed his recommendations and a follow-up plan with Lynda, she had no recollection of the specifics of the plan.
Dr. James Frost, a board certified general surgeon, testified on behalf of the defense that he understood that plaintiff's theory of the case was that defendant had deviated from the standard of care by incorrectly diagnosing internal hemorrhoids and by failing to proceed with the sigmoidoscopy on December 7, 1999. With respect to the former theory, Frost conceded that the best way to diagnose internal hemorrhoids is with an anoscope and that a definitive diagnosis cannot be made based upon a digital examination. However, a physician is entitled to make a presumptive digital diagnosis, as defendant did, with the intent of scoping the patient at a later date. Frost thus refused to fault defendant for failing to immediately proceed with an anoscopy, since defendant intended to follow-up with a sigmoidoscopy. Frost rejected the notion that defendant definitively told Lynda that her bleeding was due to internal hemorrhoids, noting that defendant expressly wrote to Dunn that her bleeding was of undetermined etiology. However, when confronted with defendant's deposition testimony that large hemorrhoids could explain rectal bleeding, Frost testified that defendant told Lynda that she had hemorrhoids but would not concede that he told her they were bleeding.
Frost also opined that defendant did not violate the standard of care by failing to re-prep Lynda and complete the sigmoidoscopy on December 7, 1999. Frost maintained that he has never known a gastroenterologist or surgeon to re-prep a patient for a sigmoidoscopy on the spot. He stated that the decision whether or not to proceed without a re-prep depends on the amount and type of stool encountered on insertion of the scope. He explained that thin amounts of stool can be flushed out, but where, as here, there was a solid stool obstruction, which likely could not be safely bypassed, the physician is not required to proceed. Frost also noted that, if there was stool in Lynda's lower colon, there was likely more stool above. In sum, Frost was of the opinion that defendant was not required to proceed since it was an elective exam and the condition of Lynda's colon was such that there was a high risk of perforating her bowel due to visual impediments.
Frost conceded that defendant made a finding that Lynda had no blood in her stool without performing a hemocult test. He acknowledged that usually blood found in the stool is not consistent with hemorrhoids as the source of the blood. Frost also agreed that Lynda's sigmoidoscopy needed to be completed expeditiously following the failed attempt and, based upon his review of defendant's records, no one from defendant's office ever communicated to Lynda the urgent need for the test.
Dr. David Sharon, a board certified medical oncologist, testified on behalf of the defense that, had Lynda been diagnosed in mid-December 1999, her cancer still would have been a third stage T4 cancer, and she would have had only a thirty percent chance of survival. He stated that Lynda's cancer was a typical slow progressing colon cancer and that, consequently, the three or four month delay in her diagnosis did not have a significant impact on her prognosis.
Sharon believed that Lynda's perforation had already occurred in December 1999. He noted that many patients do not have significant complaints despite perforation, pointing out that abscesses, such as Lynda developed, sometimes limit the symptoms. Sharon acknowledged that Lynda complained of dull, left abdominal pain that began in March, but insisted that that did not necessarily mean that the perforation did not already exist.
Sharon maintained that node involvement, and not perforation, was the key in establishing the prognosis. He pointed out that there was still a greater than fifty percent chance of a cure with perforating cancer provided there was no node involvement. Sharon was persuaded that the majority of the affected lymph nodes removed from Lynda's body would have been cancerous in December, and that it would have taken only four for her prognosis to have been the same. Sharon conceded, however, that Lynda might not have had some of the tissue changes outside her colon had she been diagnosed in December, and he acknowledged that, in the end, the delay in her diagnosis could have reduced her chances by ten to fifteen percent.
During trial, both parties repeatedly showed*fn6 the jury an unmarked copy of the November 8, 1999, letter from defendant to Dunn, which provided in pertinent part:
The abdomen is soft, non-tender, with no organomegalies or masses. There is some increased tympanism in the left upper quadrant. There are no palpable masses or organomegalies; the bowel sounds are normal.
The rectal examination shows minimally-developed external hemorrhoids with no evidence of anitis. The finger examination shows a moderately-tonic sphincter with no pain suggestive of fissure. The internal hemorrhoids are large and minimally tender posteriorly; but with no evidence of recent thrombosis and ulceration. There is no blood in the stool.
The impression is that Ms. Tepper has a rectal bleeding of undetermined etiology.
Although the judge cautioned counsel to check the exhibits closely before they were submitted to the jury, it was discovered after the jury rendered its verdict that the November 8 letter had been inadvertently given to the jury with inappropriate markings. Specifically, those portions of the letter that were highlighted by markings were: (1) defendant's impression of "rectal bleeding of undetermined etiology" had been circled; (2) the diagnosis of "internal hemorrhoids are large and minimally tender posteriorly" was underlined; (3) plaintiff's medical history that she was "left some minor neurological changes" following brain aneurysm surgery five years ago was underlined; and (4) "The rectal examination shows minimally-developed external hemorrhoids with no evidence of anitis" was underlined.
During the initial stages of the charge conferences held prior to the testimony from the last witness, the judge addressed what he was going to charge the jury concerning plaintiff's theory of liability. He stated:
First, that [defendant] failed to complete the required testing and to diagnose the plaintiff's colon cancer, this obviously in December of . . . 1999. And second, that he failed to inform the plaintiff of the urgency of the need to determine the cause of her bleeding[,] thereby in both instances increasing the risk that was previously posed by her colon cancer.
When plaintiff's counsel interjected that those were not the two deviations asserted, the judge stated:
Well, then let's focus our attention on that because those were the notes that I took from the doctor's testimony, that is . . . [he] testified . . . that the defendant failed to diagnose the cancer when he should have and that he told her that he took away her sense of urgency with respect to the diagnosis by telling her that she had [h]emorrhoids.
Disagreeing with the judge's comments, both counsel informed the judge that the first theory was that defendant deviated by diagnosing her with internal hemorrhoids and advising her that they were the cause of her bleeding thus causing her to delay further tests, and the second theory was failing to proceed with the sigmoidoscopy.
Revisiting the issue after the close of testimony later that day, counsel essentially agreed and advised the judge that one of the theories was that the doctor deviated by misdiagnosing hemorrhoids as the cause of her bleeding thus leading her to assume that there was no urgency to have a follow-up test.*fn7
The next morning, prior to closing arguments, plaintiff's counsel reiterated the assertion that the first opinion was the hemorrhoid deviation and the second the failure to proceed. The judge responded that, normally, because they are not in dispute, he would explain the concepts or elements of both plaintiff's and defendant's claims to the jury along with the applicable burdens of proof. He noted that after reviewing Goldstein's video taped testimony it was still his view that the record will reflect that Dr. Goldstein's testimony was that [defendant] deviated from the standard of care by failing to complete the required testing and to diagnose the plaintiff's cancer condition as of December, as one deviation.
And as a separate deviation by informing her that she had hemorrhoids and allowing her to conclude that her hemorrhoids were the source of her bleeding, that he deprived her of -- and these are my words, not his -- but the substance of it is that in doing so, he deprived her of any sense of urgency with respect to the need for the follow up testing.
Thereby in each instance with each of those deviations increasing the risk to her that was posed by her pre-existing condition and that that increased risk was a substantial factor in bringing about her condition.
He decided that, "[i]n view of the . . . different perceptions" of Goldstein's testimony, he would "not undertake to explain to the jury with any degree of factual precision what [his] view of Doctor Goldstein's testimony [was] . . . [and] leave that to counsel in their arguments," thus permitting counsel to be "perfectly free from their respective perspectives to argue the matter and the evidence as they see fit." He announced that he would abandon the effort to explain to the jury in [his] terms what [he] believed the evidence that the plaintiff presented in terms of the specific factual assertions of deviation [was] . . . [and] limit [his] remarks . . . to explaining to the jury what the legal definition of a deviation from the standard of care is . . . and . . . allow the jury to conclude based on what they've heard from the evidence and what they ascertain from closing argument are the deviations that they find the evidence has established.
The judge also withdrew from the visual demonstration the two slides that had been prepared entitled "Plaintiff's Claims and Defendant's Claim" and decided not to "discuss them with any degree of factual detail with respect to what the specific factual claims are." Neither party objected to the judge's decision to limit his remarks relative to the theories respecting defendant's alleged deviations.
In closing arguments, defense counsel asserted that even if the jury concluded that defendant deviated in diagnosing hemorrhoids because either there were no hemorrhoids or he could not make the diagnosis, the jury must still decide whether defendant told Lynda they were the cause of her bleeding. Asserting that defendant never told her that the hemorrhoids were the cause of her bleeding, defense counsel argued, "[w]hy was she coming back for the sigmoidoscopy and the barium enema in the first place if they already knew the cause of her bleeding?"
Plaintiff's counsel argued at length that defendant misdiagnosed her as having hemorrhoids, led her to believe that they were the source of her bleeding, and that the reason the sigmoidoscopy test was scheduled a month later rather than sooner was to confirm that diagnosis. He also argued that defendant deviated by not completing the sigmoidoscopy.
In his instructions, the judge stated the following regarding plaintiff's theory of recovery:
The plaintiff's claim, as you know, is centered as I told you on the first day, in the concept of medical negligence, or some times medical malpractice. And it is defined in the law as conduct by the physician under the circumstances presented that deviates from the standard of care applicable to physicians in that doctor's circumstance. That's the general description and I want to go through with you what the particular -- to a certain extent, what the particular claims in this regard are.
First, you'll note as the plaintiff's attorney has suggested, that there are two separate claims here by the plaintiff with respect to an asserted deviation by [defendant]. One claim relates to what happened at the office visit in November when he first met her, and the second claim has to do with what happened at Shore Memorial Hospital a month later in December when the sigmoidoscopy procedure was halted. And you've heard the plaintiff describe why the plaintiff believes that the conduct of the doctor on either occasion constituted a deviation from the standard of care.
The first instance in November at the office by reason of the examination and the diagnosis with respect to hemorrhoids and the like, and in the second instance, with respect to the failure to complete the sigmoidoscopy process and to find the cancer.
The . . . I've called this slide failure to diagnose. Frankly, I wish I would have called it something else but it's already up there and . . . the subject matter is what I want to talk to you about. Instead of failure to diagnose, I would ask you to call this slide deviation from the standard of care because the deviation in this case relates to a number of particular actions or omissions that you've heard described with respect to both the November and the December interactions. But the legal definition of deviation from the standard of care is the same in either case.
The plaintiff's claim is for either or both of two asserted deviations. One from the meeting with her in November in his office, one from the failure to complete the sigmoidoscopy . . . in December. What did he do . . . in December in the hospital, and did what he did -- was what he did consistent or not consistent with the standard of care applicable to him.
Explaining that the deviation respecting defendant's conduct at the hospital did not include inappropriate comments, the judge again referred to plaintiff's deviation theory regarding the sigmoidoscopy examination, saying:
The deviation there that is asserted is the failure to complete the sigmoidoscopy and the failure to diagnose at that time the fact that she had the colon cancer. And again, you will decide based on your view of the evidence and your view of the applicable standard whether under those circumstances what he did . . . or did not deviate from the standard of care.
Assuming that you find that either or both of the asserted deviations has been established by the plaintiff by a preponderance of the credible evidence, either or both, you would then have decided that he did deviate. If you decide that he did deviate, you would then turn to the question of increase of risk.
Although plaintiff's counsel voiced a number of objections following the judge's charge, no objection was made as to the method in which the judge described plaintiff's asserted theory of defendant's deviations.
Only the first of ten interrogatories in the jury questionnaire dealt with deviation. It asked, "Has Plaintiff established that [defendant] was negligent, that is, that he deviated from accepted standards of care applicable to surgical practice in his diagnosis of Plaintiff's condition?" Returning the next day, while the jury was still deliberating, the judge presented counsel with a revised first jury interrogatory purportedly setting forth both of plaintiff's alleged deviations.*fn8 Defendant's counsel agreed to submit the revised questionnaire to the jury. Plaintiff's counsel objected, explaining that although he believed that the issues had been improperly phrased and communicated to the jury, submission of the new interrogatory "would create massive confusion by changing this A, because that's not what the original charge was; B, that we don't even know where the jury is, they could be beyond this question." The judge determined that he would not submit the revised interrogatory absent consent of both parties. The jury unanimously answered the first interrogatory, "No."
We combine the contentions raised by plaintiff in Points I and II of her appellate brief. Plaintiff's counsel asserts that the failure to describe plaintiff's theories regarding defendant's alleged misdiagnosis of hemorrhoids, coupled with the jury exhibit highlighting certain aspects of defendant's November 8 letter to Dunn, resulted in a clear and convincing miscarriage of justice requiring a new trial. She maintains that "[b]ecause the court charged on 'a failure to diagnose' cancer and not on the direct negligence of the 'misdiagnosis' of hemorrhoids . . . the jury was incorrectly instructed."
Repeating the argument made at her motion for new trial, plaintiff suggests that a thorough review of the judge's evidence ruling indicates that he misunderstood Dr. Goldstein's testimony, thinking that the diagnosis of hemorrhoids was only related to plaintiff's delay in seeking treatment rather than negligent conduct, thus confusing the negligent diagnosis of hemorrhoids with the failure to diagnose cancer and allowing plaintiff's theory to fall through the cracks. Plaintiff also argues that the circled words, "rectal bleeding of undetermined etiology," in the November 8 letter highlighted "the single most heated issue in the case," thereby unfairly influencing the jury.
Denying plaintiff's motion, the judge found that, throughout the trial, sentences were highlighted technologically for the jury by enlarging and separating out certain sentences, thus drawing the jury's attention explicitly to the particular sentence. Finding it was improper for the document to go into the jury room in the form that it did, the judge, nevertheless, framed the issue:
The question then is whether I am satisfied on that factual record that under those circumstances the submission of the exhibit in that inappropriate form to the jury had the capacity adversely to impact . . . the jury's determination, and as a result should the jury's determination be set aside.
The judge continued:
The answer is no. And the reason that the answer is no is that however inappropriate and careless that submission to the jury was, it did not accomplish anything that hadn't been accomplished six times before in a technologically superior fashion during the course of the evidence.
There was in that entire document some other material that was of relevant impact to the issues in this case. Most of it was not. But . . . it was made very clear to the jury several times . . . [that the] single . . . most significant element of that document was the highlighted portion --and I say highlighted by which I mean highlighted to be sure inappropriately with the circle in the form submitted to the jury -- but more significantly from my point of view highlighted by both sides during the course of the trial by taking that sentence . . . and magnifying it and putting it up on the screen all by itself.
In that context I am more than satisfied that the inadvertent [but] . . . careless . . . submission of the document in that form to the jury . . . did not have and could not have had the capacity to have affected the jury's verdict.
The principles governing determination of a motion for new trial are well settled. A trial court must order a new trial "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). An appellate court must adhere to essentially the same standard when reviewing a trial court's decision in this regard. Dolson v. Anastasia, 55 N.J. 2, 6 (1969). It must give deference to the trial court's feel of the case as to matters such as the demeanor and credibility of witnesses, but otherwise conduct an independent review of the record in order to determine the justness of the result. Carrino v. Novotny, 78 N.J. 355, 360-61 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977). An appellate court may overturn a jury verdict "'only if [that] verdict is so far contrary to the weight of the evidence as to give rise to the inescapable conclusion of mistake, passion, prejudice, or partiality.'" Kassick v. Milwaukee Elec. Tool Corp., 120 N.J. 130, 134 (1990) (quoting Wytupeck v. City of Camden, 25 N.J. 450, 466 (1957)) (alteration in original).
A jury verdict must be "entirely free from the taint of extraneous considerations and influences." Panko v. Flintkote Co., 7 N.J. 55, 61 (1951). "The test for determining whether irregular influences on [a jury] merit a new trial is whether they 'could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge.'" Brown v. Kennedy Mem'l Hosp., 312 N.J. Super. 579, 590 (App. Div.) (quoting Panko, supra, 7 N.J. at 61), certif. denied, 156 N.J. 426 (1998). Notably, evidence of actual influence is not needed; rather, the simple capacity to influence is sufficient. Ibid.
The fundamental principles regarding jury instructions and interrogatories are equally well developed. Proper jury instructions are essential to a fair trial. Cavanaugh v. Skil Corp., 331 N.J. Super. 134, 160 (App. Div. 1999), aff'd, 164 N.J. 1 (2000). A trial judge is obliged to give a comprehensible explanation of the questions that the jury must resolve and to inform the jury of the law applicable to the issues in the case. Myrlak v. Port Auth. of N.Y. & N.J., 302 N.J. Super. 1, 19 (App. Div. 1997) (citations omitted), rev'd in part, 157 N.J. 84 (1999). Appropriate "[j]ury charges 'must outline the function of the jury, set forth the issues, correctly state the applicable law in understandable language, and plainly spell out how the jury should apply the legal principles to the facts as it may find them.'" Velazquez v. Portadin, 163 N.J. 677, 688 (2000) (quoting Jurman v. Samuel Braen, Inc., 47 N.J. 586, 591-92 (1966)). "'When reviewing a trial court's instruction to the jury, an appellate court must read the charge as a whole' and should not reverse 'when the charge adequately conveys the law and does not confuse or mislead the jury.'" Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 487 (App. Div.) (quoting Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418 (1997)), certif. denied, 165 N.J. 607 (2000).
It has been acknowledged in the context of a medical malpractice case that "'[a] charge is a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations.'" Das v. Thani, 171 N.J. 518, 527 (2002) (quoting State v. Martin, 119 N.J. 2, 15 (1990)). A judge "'must explain the controlling legal principles and the questions the jury is to decide.'" Ibid. (quoting Martin, supra, 119 N.J. at 15). Accordingly, in cases such as this, the court is required to tailor its instructions to the theories and facts presented in the case. Velazquez, supra, 163 N.J. at 689. A jury charge must "'plainly spell out how the jury should apply the legal principles to the facts as it may find them.'" Id. at 688 (quoting Jurman, supra, 47 N.J. at 491-92). "The failure to tailor a jury charge to the given facts of a case constitutes reversible error where a different outcome might have prevailed had the jury been correctly charged." Reynolds v. Gonzalez, 172 N.J. 266, 289 (2002).
"The purposes of submitting interrogatories to the jury 'are to require the jury to specifically consider the essential issues of the case, to clarify the court's charge to the jury, and to clarify the meaning of the verdict and permit error to be localized.'" Sons of Thunder, supra, 148 N.J. at 419 (quoting Wenner v. McEldowney & Co., 102 N.J. Super. 13, 19 (App. Div.), certif. denied, 52 N.J. 493 (1968)). Because oftentimes an "entire case turns on how the jury answers the questions on the verdict sheet . . . [t]he framing of those questions in clear and understandable language cannot be overemphasized." Benson v. Brown, 276 N.J. Super. 553, 565 (App. Div. 1994). Special interrogatories are encouraged in professional malpractice cases to elicit jury findings with precision, especially where causal relationship is disputed. See Conklin v. Hannoch Weisman, 145 N.J. 395, 411-12 (1996). It is necessary to hold a conference with counsel regarding jury interrogatories before closing argument "so that counsel are in a position to know exactly what questions will be put to the jury for its consideration." Benson, supra, 276 N.J. Super. at 565. Although agreement by counsel on jury interrogatories is desirable, "[i]n the end the judge has the ultimate responsibility for insuring the correctness of the verdict sheet." Ibid.
It appears from the judge's comments during the charge conference and when he gave his instructions to the jury that he was somewhat confused or had difficulty understanding plaintiff's theory respecting defendant's alleged misdiagnosis of hemorrhoids. The judge's suggested revision of the jury interrogatories shows that he was concerned with the lack of specificity of the general interrogatory submitted on the issues of deviation.
The parties stipulated that Lynda suffered from cancer at the time of her examinations by defendant. Both parties understood plaintiff's theory that defendant's alleged second deviation, in failing to continue the sigmoidoscopy examination, was causally related to a failure on the part of defendant to diagnose plaintiff's cancer. Whether expressed in terms of misdiagnosis or diagnosis, both parties understood and explained to the judge plaintiff's first theory that defendant's alleged deviation was in concluding that plaintiff suffered from internal hemorrhoids that were the cause of her bleeding and thus resulted in her delaying treatment out of a lack of urgency. The lack of urgency in plaintiff's mind was dependent on a finding that defendant diagnosed Lynda's hemorrhoids as the source of her bleeding. The issue was one of credibility, which was crucial to plaintiff's theory.
Defendant's November 8 letter to Dr. Dunn established defendant's diagnosis of hemorrhoids but contradicted Lynda's testimony that defendant told her they were the source of her bleeding. The jury had no way of knowing who circled the words indicating that the source of the bleeding was unknown. It could easily have concluded that Dr. Dunn, the person receiving the letter, encircled the words contradicting plaintiff's claim. To be sure, defendant's credibility was called into question by the excerpt read from his discovery deposition. Viewed in a vacuum, we agree with the judge's decision that the November 8 letter with the improperly highlighted area did not, by itself, have a capacity to influence the jury. However, when consideration is given to the lack of a clear explanation and a specific jury interrogatory expressing the factual issues to be decided in reaching its conclusions on each of plaintiff's asserted deviations, it is our view that submission of the letter with the highlighted area had a real capacity to influence the jury to reach a different result than it otherwise might have reached. Based upon our review of the entire transcript, we are satisfied that the cumulative effect of the highlighted letter and lack of specificity in the jury instruction and interrogatory was "clearly capable of producing an unjust result." R. 2:10-2.*fn9 A new trial is therefore required.
We briefly address plaintiff's Point III contention. At the beginning of the trial, counsel disagreed with whether the evidence would establish that defendant held himself out as a general surgeon or a colo-rectal surgeon and what standard would apply. The judge advised counsel that, if there was a factual issue as to whether defendant held himself out as a general surgeon or a specialist, he would let the jury determine the issue. Goldstein described colo-rectal surgery as a subspecialty under general surgery. During plaintiff's direct examination of Goldstein, counsel attempted to establish that defendant was board certified as a colo-rectal surgeon through Goldstein's reading of Dunn's discovery deposition:
[PLAINTIFF'S COUNSEL]: Based on your view of the materials, and . . . specifically the deposition of Doctor Dunn which you read, are you aware of the relationship between Doctor Dunn and [defendant]?
[DEFENSE COUNSEL]: Objection, Your Honor.
THE COURT: Relevance?
[PLAINTIFF'S COUNSEL]: Well, I -- I was going to ask to see you for a second, Your Honor. (Side Bar Conference)
[PLAINTIFF'S COUNSEL]: I -- I didn't want to have any problem with the Court Order, but I thought that we were okay with this.
I was going to ask him three questions, that he was his referral source and that Doctor Dunn believed -- and I'm going to read it right out of the testimony -- that [defendant] was a board certified colorectal surgeon and that's why he referred him and the basis of why, and then move on.
THE COURT: Objection sustained.
In his deposition, Dunn answered, "yes" when he was asked whether he was familiar with defendant's medical specialty. When asked what he understood defendant's specialty to be, he responded, "Well, he was a general surgeon as well as a colon and rectal surgeon." Dunn stated that he "believe[d]" defendant was board certified as a subspecialty in colo-rectal surgery.
When asked how he arrived at that understanding, Dunn stated, "I don't know. I just, I guess I assumed that. I think on his letterhead it even says that." At the conclusion of the trial, the only evidence that defendant held himself out as a specialist was his letterhead, which indicated,
"Diplomate American Board of Surgery General, Trauma & Colorectal Surgery Certified Laser & Laparoscopic Surgery."
At the charge conference, the judge told counsel that he was going to define deviation by referring to the standard of an average surgeon because that was the testimony about the status that defendant held himself out to be. There was no objection voiced by plaintiff at that time. After the jury was charged, however, plaintiff's counsel objected, stating that "[c]onsistent with plaintiff's prior objection we object to the charge to the jury that defendant represented himself as a general surgeon."
Plaintiff asserts on appeal that the judge erred in sustaining defendant's objection when plaintiff was questioning Goldstein respecting Dunn's knowledge of defendant's specialty. We disagree. Dunn's deposition testimony was somewhat equivocal. Moreover, it was improper to permit Goldstein to characterize what Dunn believed at the time he referred plaintiff to defendant. Such testimony would at best be speculative. Under the circumstances, the judge did not err in sustaining defendant's objection.
The only evidence bearing on defendant's certified specialty was his letterhead. Defendant asserts on appeal that the letterhead indicates that he was board certified as a general surgeon and limited his practice to general surgery, trauma, and colon and rectal surgery. Plaintiff argues that it should be interpreted as indicating that he was certified in colon and rectal surgery. Although somewhat ambiguous, the letterhead does not clearly establish that he held himself out as certified in colo-rectal surgery, or that he limited his surgical practice to specific areas. Generally, an ambiguous phrase is held against the party that created it. However, absent direct testimony from Dunn respecting his knowledge and thoughts as to defendant's specialty at the time he referred plaintiff, we agree that the evidence was insufficient to establish that defendant held himself out as a specialist in colo-rectal surgery.
Lastly, we address defendant's cross-appeal. In November 2005, the judge adjourned the trial at defense counsel's request based upon a letter from defendant's treating psychiatrist indicating that defendant was suffering from major depressive and panic disorders and was unable to attend trial. A subsequent request by defendant for an adjournment was denied. However, defendant was given the opportunity to demonstrate that his illness prevented him from attending trial. After taking into consideration the deposition testimony of defendant's treating psychiatrist and the results of an independent psychiatric examination performed at plaintiff's request, the judge determined that defendant had not established that he was medically unavailable. The judge permitted the defense limited use of defendant's deposition testimony. The judge instructed the jury that defendant chose not to be at trial although he was ordered by the court to appear, and that it was entitled to draw an inference that his testimony, if given, would not have been helpful to his position in the case.
On appeal, defendant argues that the trial should have been adjourned until defendant could appear and participate. He also argues that the judge erred in ruling that he was unavailable and charging the jury and giving a negative inference instruction. We have no way of knowing defendant's current state of health and whether it prevents him from participating in trial. Because we reverse, defendant's present state of health and whether he is able to participate in a retrial is subject to updated medical information, examination, and review. The judge's previous ruling regarding defendant's nonappearance is not binding on remand. We, therefore, decline to address the issue and dismiss defendant's cross-appeal as moot. The judgment is reversed and the matter remanded for trial.
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