BARBARA CULLEN VS. CONCENTRA, INC. (L-2911-17, HUDSON COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0580-19
BARBARA CULLEN and JOHN
CULLEN,
Plaintiffs-Appellants,
v.
CONCENTRA, INC.,
CONCENTRA HEALTH
SERVICES, INC., CONCENTRA
WEST NEW YORK,
CONCENTRA MEDICAL
CENTERS, CONCENTRA
URGENT CARE, and
CONCENTRA URGENT CARE
MEDICAL CENTERS,
Defendants-Respondents,
and
COUNTY OF HUDSON,
HUDSON COUNTY
DEPARTMENT OF FAMILY
SERVICES, INSTITUTE OF
SCIENCE AND TECHNOLOGY,
NEW JERSEY DEPARTMENT
OF HUMAN SERVICES-
DIVISION OF FAMILY
DEVELOPMENT, LOGISTICARE
SOLUTIONS, LLC,
LOGISTICARE, LOGISTICARE
MEDICAL TRANSPORTATION,
ACCESS CARE
TRANSPORTATION CORP.,
MADELINE DIAZ, RICHARD
A. BOIARDO, M.D., CROSS
COUNTY ORTHOPAEDICS, P.C.,
PROGRESSIVE INSURANCE
COMPANY,
Defendants.
_____________________________
Argued January 4, 2021 – Decided February 10, 2021
Before Judges Currier and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-2911-17.
William L. Gold argued the cause for appellants
(Bendit Weinstock, PA, attorneys; William L. Gold, on
the briefs).
Janet L. Poletto argued the cause for respondents
(Hardin Kundla McKeon & Poletto, PA, attorneys;
Janet L. Poletto, of counsel and on the brief; Robert E.
Blanton, Jr., on the brief).
PER CURIAM
Plaintiffs Barbara and John Cullen, a married couple, appeal from a no -
cause verdict following a jury trial on their personal injury complaint,
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challenging only the jury selection process.1 The jury's verdict was
memorialized in a September 26, 2019 order of final judgment in favor of
defendants Concentra, Inc., Concentra Health Services, Inc. d/b/a Concentra
Medical Centers and d/b/a Concentra Urgent Care 2 (collectively, Concentra),
effectively dismissing the Cullen complaint with prejudice. We affirm.
We glean these facts from the record. In July 2017, plaintiffs filed a
complaint and jury demand against defendants and others 3 alleging claims
sounding in negligence. Specifically, the complaint alleged that on July 27,
2015, while volunteering at defendants' medical facility, plaintiff Barbara
Cullen sustained injuries when she tripped and fell over a wire. Five months
later, on December 22, 2015, Barbara 4 was involved in a motor vehicle accident
while being transported from medical treatment for the injuries sustained during
1
On October 25, 2019, the trial court entered an order granting plaintiffs'
motion for "abbreviated transcripts limited to the court's selection of the jury."
See R. 2:5-3(c).
2
Improperly pled as Concentra Health Services, Inc.
3
Several other defendants were named in the complaint but were dismissed
prior to trial.
4
We refer to the Cullens by their first names to avoid any confusion caused by
their common surname and intend no disrespect.
A-0580-19
3
the fall. The complaint sought damages for injuries sustained in the automobile
accident as well as the fall on defendants' premises. 5
Prior to the commencement of jury selection, in plaintiffs' pretrial
exchange submitted to the court and counsel in accordance with Rule 4:25-7,
plaintiffs
request[ed] the standard voir dire questions in the
Supreme Court Guidelines as well as the following
open-ended questions:
1. Do you believe in evolution? If not,
why?
2. Do you believe that humans are at least
partially responsible for global climate
change? If not, why?
On September 10, 2019, jury selection commenced. Following an off-the-
record conference, with the agreement of counsel for both parties, the court
provided the prospective jurors with a printed copy of the final voir dire
questionnaire for use during jury selection.6 The questionnaire contained
5
John asserted a per quod claim alleging deprivation of "the services,
consortium, and companionship" of his wife.
6
With plaintiffs' consent, we granted defendants' motion to supplement the
record with plaintiffs' pretrial exchange as well as the final voir dire
questionnaire utilized during jury selection.
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twenty-one standard questions that mirrored the "Model Jury Selection
Questions" promulgated in Administrative Directive #4-07,7 nine special voir
dire questions, ten biographical questions, and the omnibus questions.
In addition to the two open ended questions requested in plaintiffs' pretrial
exchange, the special voir dire questions, which were tailored to the case, asked:
(1) whether the juror, "by reason of religious or other convictions, [did] not
believe in medicine, doctors, certain medical treatments or hospitals"; (2)
whether the juror, any family member, or close friend had "ever been diagnosed
with an orthopedic injury;" (3) whether the juror, any family member, or close
friend was "ever . . . involved in a motor vehicle accident in which injuries were
sustained"; (4) whether the juror, any family member, or close friend "ever
utilized the services of Logisticare Medical Transportation or Access Care
Transportation Corp."; (5) whether the juror, any family member, or close friend
"ever received treatment from or at a Concentra facility"; (6) whether the juror,
any family member, or close friend "ever had an experience with a hospital,
urgent care facility, minute clinic or doctor's office, good or bad, that would
impact [the juror's] ability to be fair and impartial in th[e] case"; and (7) whether
7
See Administrative Directive #4-07, "Jury Selection — Model Voir Dire
Questions Promulgated by Directive #21-06 — Revised Procedures and
Questions" (May 16, 2007).
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the juror, any family member, or close friend was "ever . . . involved as either a
plaintiff or defendant in a slip and fall accident in which an injury resulted ."
After the jurors reviewed and completed the questionnaire, they were
questioned individually by the judge in open court in counsels' presence. During
the questioning, the judge referred to the questions by numbers, clarified
questions if jurors were uncertain or confused, and asked follow-up questions if
called for by the jurors' response. At no point during the jury selection process
did plaintiffs' counsel object to the procedure utilized or the questions posed by
the judge. By the conclusion of jury selection, plaintiffs had exhausted all six
of their peremptory challenges. See R. 1:8-3(c). After a jury was empaneled,
trial commenced. The jury returned a verdict of 6-1 in favor of defendants, and
this appeal followed.
On appeal, plaintiffs argue that the court erred by failing to ask "any open-
ended questions," as required by Administrative Directive #04-07, and by
"refusing to ask follow-up questions." According to plaintiffs, "by not allowing
follow-up questions and by not allowing counsel any insight into the jurors that
the mandated open-ended questions would have provided," plaintiffs were
deprived "of the right to select a fair jury in the way the Supreme Court has
mandated."
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"[L]itigants are entitled to an unbiased jury and to a fair jury selection
process." Pellicer ex rel Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 40 (2009).
Trial judges have the primary responsibility of "ensur[ing] that the selection of
jurors is conducted in a manner that will effectuate these rights." Ibid. "In
implementing the process of screening and selection, the trial judge is vested
with discretion . . . ." Id. at 41. However, that discretion is guided by "jury
selection methods . . . designed to ensure fairness." Ibid.To that end, Directive #4-078 imposes requirements on trial courts to make
the jury selection process "more expeditious and streamlined" while addressing
specific issues related "to juror questioning at voir dire." Administrative
Directive #4-07, at 1-2. Like its predecessor, Directive #4-07, which "is
unquestionably binding on all trial courts," State v. Morales, 390 N.J. Super.
470, 472 (App. Div. 2007), is "intended to provide for a full and complete voir
dire of prospective jurors so that reasons for any appropriate challenges for
cause can be discovered and so that counsel is provided with information that
8
Directive #4-07 supplements and modifies Directive #21-06. See
Administrative Directive #21-06, "Approved Jury Selection Standards " (Dec.
11, 2006). Directive #21-06 required trial judges to ask each individual juror a
set of standard questions, as well as questions tailored to the individual case.
Directive 4-07 "modifies voir dire procedures set forth in Directive #21-06," and
"supersedes the relevant portions of that Directive."
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may be relevant to their lawful exercise of peremptory challenges."
Administrative Directive #4-07, at 1.
Specifically, Directive #4-07 states:
At the beginning of the voir dire process, each
prospective juror in the panel shall be furnished with a
printed copy of the voir dire questions, which shall
consist of all the standard questions for the case type,
as supplemented and determined by the judge at the
Rule 1:8-3 conference. The form of these questions
calls for a yes or no answer . . . .
....
In addition to the printed questions, the judge shall also
inform the jurors in the box and the array that jurors
will also be individually asked several questions that
they will be required to answer in narrative form. One
such question will be the biographical question
contained in the standard questionnaire. In addition to
the biographical question, several other open-ended
questions will be posed to prospective jurors . . . .
....
The judge may read all of the questions one time before
addressing each juror in the box individually. The
judge shall . . . inquire whether the juror answered yes
or uncertain to any of them. If so, appropriate follow
up questions shall be asked. The judge will then ask
that juror each of the open-ended questions, to which a
verbal response shall be given and for which
appropriate follow up questions will be asked. Each
juror must then be verbally asked the two omnibus
qualifying questions that follow the biographical
question in the lists of standard questions . . . .
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Questioning shall be in open court or at sidebar, in the
discretion of the court, with input from counsel.
....
When questioning the jurors about the written form, the
judge must refer to questions by number or description,
sufficient to establish for the record the question to
which the juror is responding . . . .
Some open-ended questions must be posed verbally to
each juror to elicit a verbal response. The purpose of
this requirement is to ensure that jurors verbalize their
answers, so the court, attorneys[,] and litigants can
better assess the jurors' attitudes and ascertain any
possible bias or prejudice, not evident from a yes or no
response, that might interfere with the ability of that
juror to be fair and impartial. Open-ended questions
also will provide an opportunity to assess a juror's
reasoning ability and capacity to remember
information, demeanor, forthrightness or hesitancy,
body language, facial expressions, etc. It is recognized
that specific questions to be posed verbally might
appropriately differ from one case to another,
depending upon the type of case, the anticipated
evidence, the particular circumstances, etc. Therefore,
rather than designating specific questions to be posed
verbally to each juror, the determination is left to the
court, with input from counsel, in the case.
....
The judge must ask at least three such questions, in
addition to the biographical question and the two
omnibus qualifying questions. This is a minimum
number and judges are encouraged to ask more where
such action would be appropriate . . . .
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....
While use of the standard voir dire questions is
mandatory, judges in their discretion may alter the
sequence of the questions as they determine is
appropriate – including whether to ask key challenge
for cause questions early on, to incorporate questions
suggested by counsel, or to integrate case type specific
questions . . . . The voir dire questions to be asked,
including the sequence in which to ask them,
modifications of wording on a case-appropriate basis,
the inclusion of supplemental questions requested by
counsel, and the proposed open-ended questions,
should be part of the Rule 1:8-3 conference.
[Administrative Directive #4-07, at 3-5 (paragraph
numbers omitted).]
In Gonzalez v. Silver, 407 N.J. Super. 576, 597 (App. Div. 2009), we
noted the importance of Directive #4-07's requirements. However, while it was
error in Gonzalez for the judge not to have asked the three open-ended questions
required by the Directive, "we also recognize[d] that a certain residual discretion
resides in the trial judge to accommodate the individual circumstances of each
case and the consensus views of counsel, even when doing so renders the voir
dire procedure less than fully conforming to the Directive['s] mandates." Id. at
597. In fact, we specifically did not determine whether the failure to follow "the
strict requirements" of the Directive "constituted reversible error." Id. at 598.
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To support their position that reversal is mandated, plaintiffs rely on
unreported decisions in which our colleagues concluded a failure to follow the
Directive's requirements required reversal. Although those decisions are
counterbalanced by unreported decisions reaching a contrary conclusion, none
of those decisions are either precedential or binding upon us. See R. 1:36-3.
Instead, where, as here, plaintiffs raise the issue for the first time on appeal, we
review for plain error. See R. 2:10-2. Under that standard, an error does not
warrant a new trial "unless it is of such a nature as to have been clearly capable
of producing an unjust result." Ibid. Because a litigant "is entitled to a fair trial
but not a perfect one," an error must have caused harm, or a likelihood of harm,
in order to warrant a reversal. State v. R.B., 183 N.J. 308, 334 (2005) (quoting
Lutwak v. United States, 344 U.S. 604, 619 (1953)).
Applying that standard, we conclude the judge's failure to follow the
Directive by asking three open-ended questions was not "of such a nature as to
have been clearly capable of producing an unjust result" on the limited record
provided on appeal. R. 2:10-2. To support our conclusion, we rely on the
absence of any objection to the voir dire procedure by plaintiffs' counsel either
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contemporaneously or after the verdict. 9 We are also persuaded by the fact that
the judge asked the two open-ended questions plaintiffs requested as well as
seven special voir dire questions tailored to the facts in the case. Indeed, as we
noted in Gonzalez, "plaintiff[s were] somewhat complicit in the procedure
ultimately employed." 407 N.J. Super. at 596. We may infer that the court's
error did not cause any harm from counsel's "seeming[] satisf[action] with the
court's voir dire questions, which included his requested inquiry . . . ." Id. at
597. We are therefore satisfied that the judge's failure to follow the Directive's
requirements in the jury selection procedure did not lead to an unjust result or
"a 'miscarriage of justice'" requiring reversal. Id. at 596 (quoting R. 2:10-1).
We also reject as unfounded plaintiffs' contentions that the judge's refusal
to ask follow-up questions deprived them "of the right to select a fair jury in the
way the Supreme Court has mandated." To support their contentions, plaintiffs
point to three specific instances. In the first instance, the following exchange
occurred between the court and counsel:
[PLAINTIFFS' COUNSEL]: Judge, do we approach?
THE COURT: I don't see why.
9
We do not mean in any way to detract from the importance of following proper
voir dire protocol, as provided in Administrative Directive #4-07. See Morales,
390 N.J. Super. at 472-73.
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[PLAINTIFFS' COUNSEL]: I have a challenge for
cause.
THE COURT: For cause?
[PLAINTIFFS' COUNSEL]: For cause.
THE COURT: All right [sic].
(Sidebar begins)
[PLAINTIFFS' COUNSEL]: Juror Number [Five's]
answer to the torts claim question seems to suggest he
doesn't believe people . . . should have the right to sue
at all.
THE COURT: Okay. I disagree. But you want me to
excuse him, use your challenge. Thank you.
(Sidebar ends)
[PLAINTIFFS' COUNSEL]: Judge, please excuse
Juror Number [Five] with our - -
THE COURT: You're excused, sir.
[PLAINTIFFS' COUNSEL]: - - thanks.
Counsel neither requested a follow-up question nor objected to the judge's
refusal to excuse the juror for cause. Moreover, the record sheds no light on
why the juror's response to the "torts claim question" warranted a challenge for
cause or provided grounds to excuse for cause. In Catando v. Sheraton Poste
Inn, 249 N.J. Super. 253, 264-65 (App. Div. 1991), we described the requisite
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"showing [that] must be made on the record of the jury selection itself" for an
erroneous denial of a challenge for cause to be cognizable on appeal. We
explained that "prompt" objections to the seating of the juror "while the judge
still has the capacity to deal with it, insures that avoidable error does not
inadvertently creep in to the proceedings" and "avoid[s] later disputes over the
question of what objections were actually brought to the court's attention." Ibid.Here, plaintiffs have failed to make the requisite showing on the record before
us.
In the second instance, the following exchange occurred:
[PLAINTIFFS' COUNSEL]: Judge, can we approach?
THE COURT: Okay.
(Sidebar begins)
[PLAINTIFFS' COUNSEL]: It's Juror Number
[Seven]. Question number [twelve] again. Can you
explain to him that you charge how the jury is to
calculate damages, and can he accept that? [10]
10
Question twelve stated that "[t]he court [was] aware that there ha[d] been a
great deal of public discuss[ion] about something called Tort Reform (laws that
restrict the right to sue or limit the amount recovered[)]" and asked the
prospective juror whether he or she "[had] an opinion, one way or the other on
this subject" and, if so, to "explain . . . it." Juror number seven had responded
that he had no problem with the right to sue but expressed concern about damage
awards being "fair."
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THE COURT: . . . [H]e's already answered that
question. I'll say it in my instructions. I'm not going to
do it now.
[PLAINTIFFS' COUNSEL]: Judge, the idea of asking
the question is not to create challenges; it's to create
understanding of where the juror is. And I don't want
to challenge a juror just because his answer was
confusing.
THE COURT: But the answer is not confusing. Okay?
If you really want me to ask the question - - can you
follow my instructions on damages? Do you want me
to ask that question?
[PLAINTIFFS' COUNSEL]: Yes.
(Sidebar ends)
THE COURT: Juror Number [Seven], could you
follow my instructions on damages?
[PROSPECTIVE JUROR NUMBER SEVEN]: Would
I follow it?
THE COURT: Yeah.
[PROSPECTIVE JUROR NUMBER SEVEN]: Yeah.
[PLAINTIFFS' COUNSEL]: Fine. Thank you, Judge.
Judge, please excuse Juror Number [Six] with our
thanks.
THE COURT: Okay. Number [six] . . . . You're
excused, sir. Thank you very much.
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Plaintiffs' contention that the judge refused to ask a follow-up question is
clearly belied by the record. The judge asked the follow-up question requested
by counsel, who then exercised a peremptory challenge to excuse a different
prospective juror. We are satisfied that the information elicited from
prospective juror number seven was sufficient for counsel to make an informed
decision as to whether to exercise a peremptory challenge or seek removal for
cause. See Wright v. Bernstein, 23 N.J. 284, 294 (1957) ("[T]he question is
whether the right of challenge was denied by the prospective juror's failure to
disclose the information sought pertinent and necessary to the decision of
counsel.").
In the third and final instance, plaintiffs take issue with the judge's voir
dire of prospective juror number one. During questioning, the juror , a physical
therapist, informed the judge that while he was not an employee of Concentra,
he "work[ed] in a doctor's office and a physical therapy clinic" that treated
patients "refer[red] from Concentra." When asked by the judge whether that
fact would "impact [the juror's] ability to be fair," the juror responded "[n]o."
Once the judge seated the juror, the following colloquy ensued between
the court and plaintiffs' counsel:
[PLAINTIFFS' COUNSEL]: Could we approach,
Judge?
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THE COURT: You may.
(Sidebar begins)
[PLAINTIFFS' COUNSEL]: With due respect, Judge,
I think you got Juror Number [One] to change answers
that were significant. I think he was saying he gets
people from Concentra and knows them, and therefore,
it's an objection for cause.
THE COURT: That's what he said?
[PLAINTIFFS' COUNSEL]: He said he gets patients
from Concentra several times.
THE COURT: I know that.
[PLAINTIFFS' COUNSEL]: Yeah, so . . . he knows a
party. He knows people who come from that party.
He's got a relationship with that party.
THE COURT: Wait. How did I change his answer?
[PLAINTIFFS' COUNSEL]: He consistently said
Concentra, and you kept changing it from Concentra to
companies.
THE COURT: That changes the answer?
[PLAINTIFFS' COUNSEL]: But the - -
THE COURT: I said I (indiscernible) - -
(Sidebar ends)
THE COURT: Sir, you treat patients who come from
Concentra, right?
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PROSPECTIVE JUROR [NUMBER ONE]: Yes.
THE COURT: Would that have any impact whatsoever
on your ability to be fair in this trial?
PROSPECTIVE JUROR [NUMBER ONE]: (No
audible response). [11]
THE COURT: Thank you.
[PLAINTIFFS' COUNSEL]: Please excuse Juror
Number [One], Judge.
THE COURT: You're excused, sir. Thank you very
much.
Again, plaintiffs' contention that the judge failed to ask follow-up
questions is belied by the record. After asking appropriate follow-up questions
and re-confirming that the juror could be fair and impartial, the judge seated the
juror. We are satisfied that the information elicited from the juror was sufficient
for counsel to make an informed decision as to whether to exercise a peremptory
challenge, as occurred,12 or seek removal for cause, which counsel failed to do.
In any event, any "failure to dismiss the juror for cause" is harmless where, as
11
We presume from the court's and counsel's reaction to the juror's response
that the juror responded in the negative.
12
After exercising that challenge, plaintiffs had at least one remaining
peremptory challenge.
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here, "'the party . . . use[s] an available peremptory challenge to excuse the
juror.'" Arenas v. Gari, 309 N.J. Super. 1, 20 (App. Div. 1998) (quoting
Catando, 249 N.J. Super. at 264).
Additionally, we dismiss plaintiffs' assertion that the jury selection
process "put [their] counsel in a bad light, by making it appear as though he was
objecting and removing jurors for no reason." Prior to commencing the jury
selection process, the judge instructed the prospective jurors:
The attorneys who represent the parties in this lawsuit
have the right to exercise challenges excusing jurors
without giving any reason for doing so. This is
permitted by our court rules. If you're excused in that
manner, please don't take it personally. No offense is
intended. The law traditionally gives each attorney [the
right] to have a limited number of jurors excused for no
expressed reasons.
We presume that juries follow the court's instructions. See Belmont Condo.
Ass'n, Inc. v. Geibel, 432 N.J. Super. 52, 97 (App. Div. 2013) (citing State v.
Feaster, 156 N.J. 1, 65 (1998)).
In sum, the jury selection process in its entirety was comprehensive, and
the record provides no ground on which to conclude that the jury empaneled was
not "the fair and unbiased, impartial decision-maker that is fundamental to our
system of justice." Pellicer, 200 N.J. at 48. To the extent any argument raised
by defendant has not been explicitly addressed in this opinion, it is because the
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argument lacks sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
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