JENNIFER O'CONNOR VS. RIVERSIDE PEDIATRIC GROUP, PC (L-4996-16, HUDSON COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-0700-18T2
JENNIFER O'CONNOR
(Administratrix Ad Prosequendum)
on behalf of the ESTATE OF
JAYDEN O'CONNOR, a/k/a
JAYDEN GARZONE, an Infant
(Deceased), and JENNIFER
O'CONNOR, Individually,
Plaintiff-Appellant,
v.
RIVERSIDE PEDIATRIC GROUP,
PC, SADRUL ANAM, M.D., and
WILSON DELGADO, M.D.,
Defendants-Respondents.
_____________________________
Submitted November 12, 2019 – Decided September 2, 2020
Before Judges Rothstadt and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-4996-16.
Mitchell L. Brown, attorney for appellant.
Marshall Dennehey Warner Coleman & Goggin,
attorneys for respondents (Walter F. Kawalec, III, on
the brief).
PER CURIAM
Plaintiff Jennifer O'Connor appeals from a jury verdict finding that
defendants Riverside Pediatric Group, Dr. Sadrul Anam, and Dr. Wilson
Delgado were not negligent in their care of plaintiff's decedent, Jayden
O'Connor. On appeal, plaintiff raises several arguments related to the trial
judge's alleged errors during jury selection, and she contends that these
cumulative errors necessitate reversal of the jury's verdict and a new trial. Based
on our review of the record and the governing legal principles, we affirm.
We discern the following facts from the record. On December 15, 2016,
plaintiff filed a complaint and jury demand on behalf of the estate of her son,
Jayden, against defendants for medical malpractice that resulted in Jayden's
death. Jayden, who was eighteen months old at the time of his death, suffered
from X-linked Severe Combined Immune Deficiency. Plaintiff alleged that as
a result of defendants' failure to properly examine Jayden and their deviations
from the standard of care, Jayden was deprived of the opportunity to undergo a
life-saving bone marrow transplant, which caused him to suffer extreme pain
and discomfort and a decreased quality of life, and ultimately caused his death.
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At the start of jury selection, a juror questionnaire was distributed to the
jury pool. The questionnaire contained four sections and asked questions
including whether the potential jurors or their family members or close friends
had ever worked in the medical profession or investigated medical or personal
injury claims; had ever experienced the loss of a child; had ever suffered from a
chronic disease that impacts the immune system or any other disabling illness;
or were pregnant at the time. It also asked, "If the law and evidence warranted,
would you be able to render a verdict in favor of the plaintiff or defendant
regardless of any sympathy you might have for either party?" (question thirteen).
Attached to the questionnaire was a photograph of Jayden in the Intensive Care
Unit.
According to plaintiff, prior to jury selection, plaintiff's counsel objected
to the photograph in chambers, contending that it would bias the process.
Thereafter, on the record, the judge noted that the "only thing left of any
contention was whether or not we should show the jury pool a copy of the
photo," and he asked if defense counsel was stipulating that the photograph be
admitted into evidence. As defense counsel was stipulating the admission, the
judge allowed the photograph to be shown to the jury pool, stating he did not
"see a problem with it" or "see anything prejudicial because they're going to see
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it anyway." After, plaintiff's counsel requested that the jury see more than one
photograph, but that request was denied.
Prior to distributing the jury questionnaire, the judge explained to the jury
pool that the photograph was provided to ensure that they could "decide this
case based upon the facts and the evidence, not on sympathy." The judge stated
that the picture was "not for shock value" but to give them "an idea of . . . what
[they would] see during the course of the trial" and "make sure [they]
underst[oo]d the question" to be decided.
After providing the potential jurors with an opportunity to review the
questionnaire, the judge did not read the voir dire questions to the entire array;
rather, as the jurors were called, he questioned each of them individually
regarding their responses to each question, referring to the questions by number
only. In response to question thirteen, three potential jurors were dismissed after
stating that they would be unable to do so. At that point, plaintiff's counsel
stated,
I just think that I'm kind of getting hurt by the
fact that people are . . . expressing that they're
sympathetic. But I think that really they should be
asked if they could follow the law and . . . the facts of
the case in spite of their sympathy.
I mean, it just seems like, "Oh, you're
sympathetic, you know, you're gone." You know, . . . I
don't think it's been fair to my client.
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Just, you know, if they're sympathetic . . . they
should be pressed more on whether they can follow the
law[.]
The judge agreed to "expound a little bit more" and evaluate "on a person-by-
person basis," but he noted that those who had expressed sympathy thus far were
"pretty adamant."
Subsequently, two additional potential jurors were excused due to their
response to question thirteen. The first excused juror explained that his younger
cousin had died. As to the second, the judge followed up, inquiring whether she
"[w]ould . . . be able to render a verdict in favor of the plaintiff or defendant
regardless of sympathy." The potential juror responded that she works with
children on a regular basis, and it would be difficult for her to set aside her
sympathy. After that response, she was dismissed.
On September 27, 2018, the jury returned a verdict in favor of defendants.
This appeal followed.
On appeal, plaintiff presents the following issues for our review:
POINT I: BY FAILING TO ORALLY ASK JUROR
QUESTIONS THE TRIAL COURT FAILED TO
PROPERLY ASSESS JUROR BIAS, ATTITUDES
AND REASONING ABILITY, RESULTING IN
BIASED JUROR SELECTION (not raised below)
POINT II: THE TRIAL COURT ERRED IN
DESCRIBING TO THE JURY POOL AND
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SUBSEQUENTLY ALLOWING POTENTIAL
JURORS TO VIEW EMOTIONALLY CHARGED
PHOTOGRAPHIC EVIDENCE BECAUSE IT
TAINTED THE JURY SELECTION PROCESS AND
BIASED IT IN FAVOR OF DEFENDANTS (not raised
below)
POINT III: THE COURT ERRED IN CONDUCTING
INQUIRIES AND ALLOWING JURORS TO
ANSWER QUESTIONS AND EXPRESS BIASES IN
OPEN COURT RATHER THAN AT SIDE-BAR
THEREBY TAINTING THE ENTIRE JURY POOL
AND RESULTING IN AN UNFAIR JURY
SELECTION PROCESS (not raised below)
POINT IV: PURSUANT TO RULE 2:10-2, THE
JURY VERDICT SHOULD BE REVERSED IN THE
INTEREST OF JUSTICE BECAUSE CUMULATIVE
ERRORS OF THE TRIAL COURT WERE CLEARLY
CAPABLE OF PRODUCING AN UNJUST RESULT
(not raised below)
Plaintiff first argues that the trial judge committed reversible error by
failing to orally ask potential jurors, individually, each standard question on the
juror questionnaire. Plaintiff contends that this error violated the Administrative
Office of the Courts (AOC) Directive #21-06 and mandates reversal. Further,
plaintiff contends that this error resulted in the judge's failure to properly assess
potential jurors' biases, attitudes, and reasoning ability. We disagree.
As plaintiff correctly notes, AOC Directive #21-06 previously required
trial judges to read each voir dire question to each individual juror. See State v.
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Morales, 390 N.J. Super. 470, 474 (App. Div. 2007) (holding that written
questions "may not serve as a substitute for orally asking questions to each juror"
and requiring strict compliance with the Directive). On May 16, 2007, however,
the AOC issued Directive #4-07(3), which supplemented and modified AOC
Directive #21-06 and states that "[w]here this Directive modifies voir dire
procedures set forth in Directive #21-06, it supersedes the relevant portion of
that Directive."1
Directive #4-07, modified and partially superseded Directive #21-06.
Specifically, "[t]he first modification authorizes judges, as an alternative
procedure, to conduct voir dire without being required to verbally ask each
question to each juror." Consequently, as of the date of plaintiff's trial, there
was no requirement that judges orally read each question to each juror.
1
As the Directive notes, after the implementation of Directive #21-06, the OAC
received critical comments from trial judges concerning the procedures in
Directive #21-06, focused specifically on the requirement that each question
must be verbally put to each prospective juror. In response, the Supreme Court
Committee on Jury Selection in Criminal and Civil Trials considered the matter
and agreed that requiring each prospective juror to be verbally asked each
question was "unnecessary and, to some extent, counterproductive to the goals
of the jury selection standards."
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That said, the trial judge deviated from the alternative procedures set forth
in Directive #4-07 because he failed to read the questionnaire aloud to the entire
array. Specifically, Directive #4-07(3) states,
The judge must read and review each question en banc
with the first jurors seated in the box. The judge should
instruct all jurors in the array to pay close attention and
may tell them to mark their printed copy of the
questions with their yes or no responses. The judge
should instruct that, unless requested by a particular
juror, the questions will not be read again, thus making
this the appropriate opportunity for jurors to note their
answers. The judge should also instruct that if a juror
is unsure of his or her answer or is uncertain as to the
meaning of the question, the juror should bring that to
the judge's attention when called upon. Jurors will not
place their names on the printed copies, and when a
juror has completed the process, the printed copy will
be returned to court staff and destroyed if written upon
or damaged.
Despite this error, we conclude that the judge's failure to read the standard
questions to the entire array, as required by AOC Directive #4-07, was not in
and of itself reversible error. There appears to have been no objection to the
voir dire procedure used, either contemporaneously or after the verdict. 2 To the
extent that the purpose of the Directive is to empanel a jury without bias,
2
We do not mean, in any way, to detract from the importance of following
proper voir dire protocol, as provided in AOC Directives #21-06 and #4-07. See
Morales, 390 N.J. Super. at 472–73.
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prejudice, or unfairness, see Morales, 390 N.J. Super. at 475, our review of the
record does not suggest that a "miscarriage of justice" resulted from failing to
follow those requirements, R. 2:10-1. In that regard, while the specific questions
were not read verbatim, the procedure the judge followed included individual
questioning of each juror concerning their impartiality.
We also reject plaintiff's argument that the judge erred in allowing the jury
pool to view "emotionally[]charged photographic evidence" of the decedent in
critical condition in the ICU because it "tainted the jury selection process and
biased the . . . process in favor of defendants." Plaintiff initially objected to
showing the photograph but on the record requested that more photographs be
displayed. Although we question why photographs or other evidence should
ever be shown to an array during voir dire, only two excused jurors mentioned
the photograph as a reason they could not be impartial; the remaining excused
jurors had more general reasons, including the loss of a young relative or their
work with young children. Moreover, in requesting that additional photographs
be displayed, plaintiff's counsel evidently recognized that the photograph was
capable of invoking sympathy to his client's benefit.
We also reject as unfounded plaintiff's attempt to link the photograph to
the absence of any parents on the jury. In that regard, plaintiff asserts that
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"children are members of a cognizable group . . . and parents are an important
cross-section of society deserving of representation as jurors." Plaintiff argues
that the display of the photograph "could have resulted in a selection of jurors
who were actually biased against children."
As a threshold matter, in any Gilmore3-based claim, "a defendant must
first identify a constitutionally cognizable group, i.e., a group capable of being
singled out for discriminatory treatment." State v. Fuller, 182 N.J. 174, 181
(2004) (quoting State v. Fuller, 356 N.J. Super. 266, 278 (App. Div. 2002)). Our
Supreme Court has explained that people who are "demonstrative about their
religions" and "age-defined groups" are not such constitutionally cognizable
groups, as they "do not 'hold cohesive and consistent values and attitudes . . .
[that] are substantially different from other segments of the community.'" Ibid.
(alteration in original) (quoting Fuller, 356 N.J. Super. at 279). Similarly, here,
parents are not a constitutionally cognizable group, and their unintentional
exclusion from the jury was not discriminatory.
More importantly, there was no systematic exclusion of jurors with
children in this case. Of the eight first-seated jurors, none had children. Many,
3
State v. Gilmore, 199 N.J. Super. 389 (App. Div. 1985), aff'd, 103 N.J. 508
(1986).
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if not most, of the replacement jurors also had no children. Plaintiff happened
to drew an array that had an unusually high percentage of people with no
children. Thus, even if legally sustainable, the record does not support plaintiff's
claim.
We also reject plaintiff's argument that the judge committed plain error by
conducting inquiries and allowing prospective jurors to answer questions and
express biases and opinions in open court rather than at sidebar, which she
alleges tainted the jury pool and resulted in an unfair selection process.
"[L]itigants are entitled to an unbiased jury and to a fair jury selection
process." 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 doing so,
judges have the discretion to determine whether to question a prospective juror
"in open court, while the prospective juror is seated in the jury box, or to conduct
the examinations of each of them, or any of them, separately at sidebar." Id. at
41.
Here, plaintiff claims that the judge abused his discretion in allowing the
following comments to be made in open court:
[POTENTIAL JUROR NUMBER FIVE]: I mean, I
have an opinion. My opinion is that in healthcare they
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try their best . . . to do what they can, so . . . that they're
not necessarily happy with the result doesn't necessarily
mean that . . . (indiscernible).
....
[POTENTIAL JUROR NUMBER EIGHT]: I don't
think you can put a price on someone's life.
....
[POTENTIAL JUROR NUMBER EIGHT]:
Sometimes I get so emotional . . . . So, when we look
at the doctors there, they are people too. Everyone has
to make choices. And . . . people make mistakes but
then to what extent. Like (indiscernible).
....
[POTENTIAL JUROR NUMBER SEVEN]: [T]hrough
my occupation I work in this building regularly and also
. . . from my birth until [eighteen] years old,
[defendants] were my pediatricians and also my
cousin's a nurse for that group as well.
We discern no abuse of discretion in allowing these comments to be made
in open court as they were fleeting, and no objections were made at the time.
All three potential jurors were excused, numbers five and eight by plaintiff and
number seven by the judge.
Pellicer is distinguishable from the instant case, as it involved prospective
jurors who "voice[d] deep feelings of resentment and bias in open court." 200
N.J. at 45. These included specific, emotionally charged examples of the poor
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care and "negative experiences" that the potential jurors' relatives r eceived at
the defendant hospital, which were characterized as "repeated expressions of
anger, resentment, bitterness, and dissatisfaction . . . directed at the very facility
where the tragic events that were about to be considered had taken place[ and]
could not have been ignored by the jurors who overheard them." Id. at 45-47.
Here, by contrast, the statements that plaintiff points out express only general
opinions regarding the medical profession and nonspecific feelings toward
defendants. These are neither "deep feelings of bias" that the Supreme Court
directed must be expressed at sidebar, id. at 47, nor do they constitute ringing
endorsements of defendants or their profession.
In short, none of the cited errors, individually or on a cumulative basi s,
were clearly capable of producing an unjust result and, as such, we decline to
disturb the jury's verdict.
Affirmed.
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