REGINALD P. GAMBLE VS. PROGRESSIVE MOTION MEDICAL PRODUCT SOLUTIONS (L-4167-11, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1562-15T4
REGINALD P. GAMBLE and
DION M. HOPPER, His Wife,
Plaintiffs-Appellants,
v.
PROGRESSIVE MOTION MEDICAL
PRODUCT SOLUTIONS, ADVANTUS
MEDICAL HEADQUARTERS and DJ
ORTHOPEDICS, LLC,
Defendants,
and
BRIAN VAN GROUW, D.O.,
Defendant-Respondent.
______________________________________________
Argued December 18, 2017 – Decided July 11, 2018
Before Judges Messano, Accurso and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No.
L-4167-11.
Paul M. da Costa argued the cause for
appellants (Snyder Sarno D'Aniello Maceri &
da Costa, LLC, attorneys; Paul M. da Costa,
of counsel and on the brief; Sarah L. Davis,
on the brief).
Michael J. McBride argued the cause for
respondent (Mattia & McBride, PC, attorneys;
Phillip F. Mattia, Haley K. Grieco and
Zachary G. Farnsworth, on the brief).
PER CURIAM
Following a lengthy trial in this medical malpractice
action, a jury determined defendant Brian Van Grouw, D.O.,
deviated from accepted standards of medical care when he treated
plaintiff Reginald P. Gamble, but found such treatment did not
proximately cause the damages plaintiff claimed arose from the
alleged deviations.1 Plaintiff and his spouse, Dion M. Hopper,
who asserted a per quod claim against Dr. Van Grouw, appeal from
an October 29, 2015 order denying plaintiffs' motion for
judgment notwithstanding the verdict, a mistrial, or new trial.2
After reviewing the evidence adduced at trial, the parties'
arguments, and the applicable legal principles, we affirm.
I
We summarize the salient evidence. In 2009, plaintiff
consulted with defendant, an orthopedic surgeon, about pain he
had been experiencing in both knees. On May 13, 2009, defendant
performed an arthroscopy on plaintiff's left knee to remove the
1
By the time of trial, Dr. Van Grouw was the sole defendant,
plaintiff having previously settled with all other defendants.
2
For simplicity, for the remainder of this opinion the term
"plaintiff" shall refer to Reginald P. Gamble only.
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meniscus. Following surgery, defendant prescribed a cryotherapy
device (device) for plaintiff to use at home to help control
post-surgical pain and swelling. When in use, cold water from
the device flowed across plaintiff's bandaged knee.
Defendant testified that both he and his staff instructed
plaintiff to use the device continuously during the first
seventy-two hours following surgery and, thereafter, as needed
to control any pain or swelling. In addition, in general he
advises all patients using the device to contact him if any
"issues" arise with respect to "drainage, redness, warmth."
Plaintiff testified he used the device continuously during
seventy-two hours immediately following surgery and as necessary
thereafter. Starting with the third day following surgery,
plaintiff used the machine every other hour for an hour. On May
18, 2009, the fifth day following surgery, plaintiff began to
feel numbness in his knee. Because he was also experiencing
what he believed was an abnormal amount of swelling and
bleeding, plaintiff contacted and saw defendant in his office
that day.
According to defendant's office notes, plaintiff complained
of having a lot of pain in his knee, swelling, and some
bleeding. Defendant testified fluid had accumulated in
plaintiff's knee, making it appear swollen, a common post-
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operative occurrence. It is not disputed defendant aspirated
the fluid from the knee and instructed plaintiff to return in a
week for another checkup.
On May 26, 2009, plaintiff returned to defendant's office
for the scheduled follow-up visit, during which defendant's
office notes reflect fluid had again accumulated in the knee.
Defendant again drained the knee, but testified the knee
"appeared to be good," and that there was nothing that made him
"overly concerned." Plaintiff testified his knee was still
painful at that second office visit and that defendant advised
him to continue using the cryotherapy device as needed for pain.
On June 4, 2009, plaintiff returned to defendant's office
for a follow-up visit. Defendant's office notes reflect
plaintiff was complaining of "a lot" of pain, tenderness, and
swelling. Plaintiff testified there was "dark black skin" and
blisters forming on his knee; defendant's office notes do not
mention changes in plaintiff's skin color or the presence of
blisters. Defendant testified he found a small amount of fluid
in the knee, which he did not consider to be abnormal. He
directed plaintiff to attend physical therapy because the
muscles around the knee had grown weak and stiff from lack of
use.
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On June 12, 2009, plaintiff called defendant's office
seeking renewal of a prescription for pain medication.
Defendant's office notes indicate plaintiff reported he was
"doing better" and that physical therapy was "going well."
However, on June 20, 2009, plaintiff went to an emergency room
because he was experiencing increased knee pain and nausea; he
was subsequently admitted into the hospital, where he remained
until August. Defendant did not treat plaintiff after June 20,
2009.
At the time of his admission, significant eschar was noted
to have formed over a wound on plaintiff's knee; eschar is dead,
necrotic tissue. Two days after plaintiff's admission, the
eschar was surgically debrided3 in an effort to induce new skin
to grow. However, the wound over plaintiff's knee did not heal,
and additional eschar developed and had to be removed.
Subsequent testing and additional surgical procedures
revealed the bones and joints of plaintiff's knee were
deteriorating as the result of osteomyelitis, an infection of
the bone. In fact, there was concern plaintiff would lose his
leg. When plaintiff was discharged in August, the fate of his
leg was still uncertain. Eventually, his treating physicians
3
Debridement is the removal of damaged tissue or foreign
objects from a wound. Stedman's Medical Dictionary 496 (28th
ed. 2006).
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were able to salvage the leg by fusing plaintiff's knee.
Plaintiff filed a medical malpractice complaint against
defendant, alleging he committed various deviations from
accepted standards of medical care during the period immediately
following the arthroscopy. Plaintiff further contended that as
a proximate result of such deviations, he was forced to and will
endure pain and suffering, including but not limited to the
fusion of his knee.
During trial, each party called various medical experts on
the issue of liability and damages. The most sharply contested
issue was proximate causation. We address this issue first
because not only was it the most controversial, it also puts the
alleged deviations into perspective.
One of plaintiff's liability experts, orthopedist Stephen
H. Marcus, M.D., opined the device caused a thermal injury or
"freezer burn" to plaintiff's knee, and did so within the first
seventy-two hours of the arthroscopy. Marcus claimed
plaintiff's complaints during the post-operative period were
caused by the thermal injury, and opined the skin over
plaintiff's knee likely exhibited a change in appearance that
defendant failed to recognize.
The expert opined that had defendant properly examined
plaintiff on June 4, 2009, he would have noted, consistent with
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plaintiff's observations at that time, signs consistent with a
thermal injury, specifically, blistering of the skin and the
start of the formation of eschar, which is black in color.
Marcus did not state what steps defendant could or should have
taken had he recognized plaintiff sustained the alleged thermal
injury during the post-operative visits.
Marcus concluded plaintiff ultimately required a fusion of
his knee for the following reason. The thermal injury destroyed
the skin on plaintiff's knee, requiring surgical procedures to
debride the dead tissue. While recuperating in the hospital
from such procedures, although bandaged, plaintiff's knee was
exposed to certain bacteria found in hospital environments.
Such bacteria invaded the wound and subsequently penetrated the
bones of plaintiff's knee. The bacteria caused osteomyelitis,
which destroyed the bones in plaintiff's knee, necessitating a
fusion.
Arnold Lentnek, M.D., plaintiff's infectious disease
expert, similarly opined plaintiff sustained a thermal injury
caused by the cold water the device circulated over plaintiff's
knee, and that such injury likely occurred within seventy-two
hours of the arthroscopy. He also stated the thermal injury
destroyed the tissue around the knee and, while plaintiff was in
the hospital recuperating from procedures to treat such injury,
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bacteria entered the wound and eventually infiltrated the bones
in plaintiff's left knee, necessitating the fusion.
Plaintiff's experts testified defendant's principal
deviations from the standard of care were his failure to: (1)
review the FDA label on the device, which warned it may cause
frostbite, before prescribing the device to plaintiff; (2) warn
plaintiff he might suffer a thermal injury as a result of using
the device; (3) personally instruct plaintiff on how to use the
device, instead of relegating such task to his staff; (4) advise
plaintiff he should not use the device continuously for seventy-
two hours; (5) advise plaintiff to contact him if the skin over
his knee became red or the sensitivity of the skin changed; and
(6) recognize plaintiff had sustained a thermal injury during
the post-operative office visits and advise plaintiff to suspend
the use of the device.
On the issue of proximate cause, Michael McIlroy, M.D.,
defendant's infectious disease expert, opined that when
plaintiff went to the emergency room on June 20, 2009, he was
suffering from bullous cellulitis, a blistering form of
infection of the skin. McIlroy pointed out that, early in his
admission, tissue removed from plaintiff's left knee was
analyzed and revealed the presence of inflammatory cells. He
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testified such findings showed an infection was present and is
not indicative of a thermal injury.
In addition, he noted the tissue was sent to a microbiology
laboratory, where a gram stain revealed gram-positive cocci were
infiltrating the tissue of plaintiff's knee. McIlroy testified
such results were "one hundred percent" proof plaintiff's knee
was not only infected, but significantly so. He stated the
morphology of the cocci was highly consistent with
Staphylococcus aureus (staph aureus), an "aggressive" infection
capable of causing the damage to plaintiff' knee. He also
mentioned eschar forms when one has bullous cellulitis.
McIlroy further testified the infection in plaintiff's knee
was going to occur regardless of plaintiff's use of the device;
in fact, he opined in all probability the cool water from the
device kept the infection localized, retarding it from spreading
up and down plaintiff's leg. McIlroy also noted there were some
systemic signs of infection when plaintiff appeared in the
emergency room. For example, although plaintiff's white blood
count was normal, neutrophils, the cells that fight bacteria,
were elevated and very suggestive of infection.
Orthopedist Joseph Bosco, M.D., defendant's expert on
deviation, conceded defendant deviated from accepted standards
of medical care if he failed to warn plaintiff there was a risk
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he might sustain a thermal injury if he used the device. Bosco
also testified defendant deviated if he did not instruct
plaintiff on how to use the device and to look for redness,
blisters, and increased pain. Otherwise, according to Bosco,
defendant did not deviate from accepted standards of medical
care.
Bosco further testified it is more likely than not
plaintiff did sustain a thermal injury from the device, although
added he was not convinced plaintiff did so to a "medical
certainty." However, Bosco did not opine such injury was the
proximate cause of the subsequent injuries and damages plaintiff
claims in this matter.
As previously stated, the jury found defendant deviated
from accepted standards of medical care, but found such
deviations were not a proximate cause of his injuries.
Following the verdict, plaintiff filed a motion requesting
judgment notwithstanding the verdict, a mistrial, or new trial.
The trial court denied the motion and this appeal ensued.
There was additional evidence adduced and some procedural
developments that arose during the trial relevant to the issues
on appeal. For brevity and clarity, we summarize such evidence
and developments when we address the particular argument to
which they pertain.
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II
On appeal, defendant reprises for our consideration the
following arguments asserted in his post-trial motion before the
trial court:
POINT I: THE TRIAL COURT COMMITTED HARMFUL
ERROR BY FAILING TO SUBMIT SEPARATE JURY
INTERROGATORIES AS TO EACH ALLEGED DEVIATION
FROM ACCEPTED STANDARDS OF PRACTICE ON THE
PART OF DEFENDANT, INCLUDING (A) FAILURE TO
WARN, (B) FAILURE TO PROPERLY INSTRUCT, AND
(C) FAILURE TO TIMELY DIAGNOSE AND TREAT
PLAINTIFF'S THERMAL INJURY.
POINT II: THE TRIAL COURT COMMITTED HARMFUL
ERROR BY REFUSING TO INCLUDE AN INFORMED
CONSENT JURY CHARGE.
A. THE TRIAL COURT COMMITTED HARMFUL
ERROR BY REFUSING TO INCLUDE AN
INFORMED CONSENT JURY CHARGE INSOFAR AS
THE LEARNED INTERMEDIARY DOCTRINE WAS
RULED TO APPLY AS A MATTER OF LAW.
B. THE TRIAL COURT COMMITTED HARMFUL
ERROR BY REFUSING TO INCLUDE AN
INFORMED CONSENT JURY CHARGE SINCE THE
PLAINTIFF PROVIDED AN ADEQUATE
EVIDENTIAL FOUNDATION IN SUPPORT OF
SUCH CHARGE.
POINT III: SINCE THE DOCTRINE OF INFORMED
CONSENT SHOULD HAVE BEEN CHARGED TO THE
JURY, THE TRIAL COURT ABUSED ITS DISCRETION
IN DENYING PLAINTIFF'S MOTION TO BAR ANY
REFERENCES AS TO THE DOCTRINE OF AVOIDABLE
CONSEQUENCES.
POINT IV: THE TRIAL COURT ABUSED ITS
DISCRETION BY DENYING PLAINTIFF'S MOTION FOR
PARTIAL JUDGMENT REGARDING DEFENDANT'S
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FAILURE TO OBTAIN PLAINTIFF'S INFORMED
CONSENT.
POINT V: THE TRIAL COURT ABUSED ITS
DISCRETION BY DENYING PLAINTIFF'S MCKENNEY
MOTION WHEREIN A CURATIVE INSTRUCTION WAS
REQUESTED BASED UPON THE DEFENDANT'S
MATERIAL CHANGE IN TESTIMONY.
POINT VI: THE TRIAL COURT ABUSED ITS
DISCRETION IN DENYING PLAINTIFF'S MOTION FOR
A MISTRIAL BASED UPON THE JURY'S MISCONDUCT
AND FAILURE TO FULLY AND FAIRLY DELIBERATE.
We separately address each contention.
A
During its final charge to the jury, the court instructed:
When a physician prescribes a medical device
approved by the [FDA], the prescribing
physician assumes a duty from a manufacturer
of a device to warn patients of known
potential risks associated with the use of
the device.
The court has found as a matter of law that
it was solely the defendant's legal duty to
inform and warn the plaintiff, Reginald
Gamble, regarding the cryotherapy devices.
Next, I'm going to move on to a discussion
of duty and negligence.
Plaintiffs . . . contend that the defendant
. . . was [1] negligent in failing to
properly warn and inform the plaintiff
regarding the cryotherapy device, [2]
negligent in instructing the plaintiff on
the usage of the cryotherapy device, and [3]
negligent in the failure to diagnose and
threat the alleged thermal injury of
plaintiff . . . .
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On the issue of deviation and proximate causation, the
verdict sheet instructed the jury to answer the following two
interrogatories:
1. Have the plaintiffs proven by a
preponderance of the evidence that the
defendant, Brian Van Grouw, D.O., deviated
from accepted standards of medical practice?
2. Have the plaintiffs proven by a
preponderance of the evidence that said
negligence was a proximate cause of injury
to the plaintiff Reginald P. Gamble?
The jury answered "yes" to the first and "no" to the second
question.
Plaintiff did not object to the charge, but did object to
the fact that the three deviations set forth in the charge were
not broken down into three separate questions on the verdict
sheet. On appeal, he argues the verdict was ambiguous because,
in answering the first of the two questions cited above, it is
not known which of the three alleged deviations the jury found.
Plaintiff further contends the verdict on deviation was
"inherently inconsistent and contradictory" when compared to the
verdict on proximate cause. Plaintiff's complaint about the
alleged deficiency of the verdict sheet is confined to the
allegation defendant deviated by failing to diagnose and treat a
thermal injury.
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Plaintiff argues that if the jury found defendant deviated
because he failed to treat and diagnose a thermal injury, then
the jury inherently found plaintiff did sustain a thermal injury
and, therefore, "the jury's final determination as to proximate
cause was completely contradictory to its finding of
[deviation]. . . . As such, . . . the trial court's ambiguous
and incomplete interrogatories were clearly capable, and did in
fact, produce an unjust result in the form of a completely
inconsistent jury verdict." We disagree.
"[A] trial court's interrogatories to a jury are not
grounds for a reversal unless they were misleading, confusing,
or ambiguous." Sons of Thunder v. Borden, 148 N.J. 396, 418
(1997). Further, when "reviewing an interrogatory for
reversible error," the interrogatory should be "consider[ed]
. . . in the context of the [jury] charge as a whole," as "[a]n
accurate and thorough jury charge often can cure the potential
for confusion that may be present in an interrogatory." Ponzo
v. Pelle, 166 N.J. 481, 491 (2001) (citing Thunder, 148 N.J. at
415-20).
First, we note that, although there was evidence from
plaintiff's experts that defendant deviated because he allegedly
failed to recognize the signs of thermal injury, there was no
evidence about the treatment defendant was required to
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administer once such injury manifested itself, other than to
advise plaintiff to suspend using the cryotherapy device.
Second, and more important, even if plaintiff sustained a
thermal injury, the jury found such injury was not a proximate
cause of his damages. Plaintiff contended a thermal injury
caused the tissue around his knee to deteriorate, the reason he
went to the hospital on June 20, 2009. Then, while in the
hospital for treatment of such condition, he contracted an
infection that caused him to develop osteomyelitis. The
osteomyelitis in turn caused the destruction of the bones in his
knee, necessitating a fusion.
Defendant, on the other hand, contended the problem
plaintiff was having with his knee when he entered the hospital
was not caused by a thermal injury but by bullous cellulitis, an
aggressive form of infection. Defendant claims this particular
infection, not a thermal injury, proximately caused plaintiff's
damages.
In our view, there was ample evidence for the jury to find
plaintiff's injuries were caused by bullous cellulitis. The
jury was at liberty to reject the evidence plaintiff introduced
in support of his claim the proximate cause of his damages was a
thermal injury. Accordingly, even if the jury found defendant
deviated from accepted standards of medical care by failing to
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diagnose and treat a thermal injury, it is obvious from its
answer to the second question on the verdict sheet the jury
determined such injury was not a proximate cause of plaintiff's
damages.
B
Defendant next contends the trial court erred when it
declined to charge the jury on informed consent. Defendant
argues that, because the learned intermediary doctrine4 applied
and he provided sufficient evidence thermal injury is a risk of
using the subject device, the court was obligated to charge the
jury on informed consent. He maintains the trial court's
refusal to "include an informed consent charge was not only
inconsistent, but also clearly prejudicial to the plaintiffs[,]"
4
Because a physician functions as an intermediary between
manufacturer and consumer, under the learned intermediary
doctrine, "a pharmaceutical manufacturer generally discharges
its duty to warn the ultimate user of prescription drugs by
supplying physicians with information about the drug's dangerous
propensities." Niemiera by Niewmiera v. Schneider, 114 N.J.
550, 559 (1989).
Just before trial, the court determined such doctrine
applied in this matter. As indicated by the excerpt from the
jury charge recited above, consistent with its ruling, the court
instructed the jury that "[t]he court has found as a matter of
law that it was solely the defendant's legal duty to inform and
warn the plaintiff, Reginald Gamble, regarding the cryotherapy
devices."
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especially given defendant admitted he did not warn plaintiff of
the risk of thermal injury. We disagree.
"[A] patient has several avenues of relief against a
doctor: (1) deviation from the standard of care (medical
malpractice); (2) lack of informed consent; and (3) battery."
Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 545
(2002) (citing Colucci v. Oppenheim, 326 N.J. Super. 166, 180
(App. Div. 1999)). "Although each cause of action is based on
different theoretical underpinnings, 'it is now clear that
deviation from the standard of care and failure to obtain
informed consent are simply sub-groups of a broad claim of
medical negligence.'" Ibid. (quoting Colucci, 326 N.J. Super.
at 180).
To prove a physician was negligent premised upon a theory
of lack of informed consent, a plaintiff must show:
(1) the physician failed to comply with the
applicable standard for disclosure; (2) the
undisclosed risk occurred and harmed the
plaintiff; (3) a reasonable person under the
circumstances would not have consented and
submitted to the operation or surgical
procedure had he or she been so informed;
and (4) the operation or surgical procedure
was a proximate cause of plaintiff's
injuries.
[Newmark-Shortino v. Buna, 427 N.J. Super.
285, 304 (App. Div. 2012) (quoting Teilhaber
v. Greene, 320 N.J. Super. 453, 465 (App.
Div. 1999)).]
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Here, the "procedure" at issue was the use of the cryotherapy
device, and the undisclosed risk was thermal injury.
In light of the jury's determination defendant's deviations
from accepted standards of medical care were not the proximate
cause of his damages, the court's failure to charge the jury on
informed consent was entirely harmless and clearly not capable
of producing an unjust result. See R. 2:10-2 ("Any error or
omission shall be disregarded by the appellate court unless it
is of such a nature as to have been clearly capable of producing
an unjust result . . . ."). As is evident from the jury's
verdict, neither a thermal injury nor the procedure was deemed a
proximate cause of plaintiff's injuries.
C
Plaintiff contends the doctrine of avoidable consequences
did not apply in this matter. The doctrine of avoidable
consequences "provides that, in instances in which a defendant
has committed an actionable wrong, damages flowing from that
wrong will be precluded to the extent that they could have been
averted by an exercise of reasonable care by the injured party."
Geler v. Akawie, 358 N.J. Super. 437, 458 (App. Div. 2003).
In his brief before us, plaintiff claims defendant made
"numerous references to the plaintiff's alleged misuse of the
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cryotherapy device and alluded to his 'responsibility' regarding
same. These references were entirely inappropriate and clearly
prejudicial to plaintiffs."
With one exception, contrary to Rule 2:6-2(a)(5), plaintiff
fails to provide citations to the record in support of his
assertion defendant made numerous comments that plaintiff had
misused the device. In the one instance for which he does
provide a citation to the trial transcript, the record reveals
defense counsel asked plaintiff if he agreed it was his
responsibility to read and fully understand the instructions
that came with the cryotherapy device. Plaintiff's counsel
immediately objected and the court sustained the objection.
Defendant then withdrew the question.
We are fully satisfied plaintiff was not in any way
prejudiced by this question. Further discussion on this point
is unnecessary.
D
Plaintiff contends the trial court erred when it denied his
motion for a mistrial. Plaintiff had contended a juror engaged
in misconduct and failed to fully and fairly deliberate. The
details are as follows.
The jury began its deliberations at 2:18 p.m. on April 21,
2015 and was discharged for the day at approximately 4:30 p.m.
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The jury resumed deliberations the following day at 9:20 a.m.
At approximately 11:01 a.m., the court asked through court staff
if the jury wanted a recess; the jury responded it needed "five
more minutes."
At 11:08 a.m., juror six caught the court clerk's attention
by opening the door of the jury room. The juror informed the
clerk she had just learned her son had been arrested and was
"really upset." The juror retreated to the jury room with the
rest of the jurors.
While the jury remained in the jury room, the court
discussed with counsel how best to proceed. The court
determined the jury would take a break and, in the meantime, the
court and counsel would bring juror six into chambers to discuss
her problem. The court then brought the jury out to the court
room and asked if it was ready for a break. A juror replied the
jury had reached a verdict. The jury remained in the court room
and the court took the verdict.
After the jury was discharged but before counsel left the
court room, plaintiff's counsel requested a mistrial because,
"clearly [juror six] had her cell phone accessible and was, at
minimum, receiving a call or looking at text messages. . . .
And the timing of that all was really in close connection with
this jury's verdict." In a brief he subsequently filed,
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plaintiff argued juror six's access to the electronic device
tainted the jury deliberation process and invalidated the
integrity of the verdict.
We note that, at the outset of the trial, the jury was
instructed that while in the jury room, all cell phones and
other communication devices had to be turned off. The jury was
advised it would be given a telephone number at which a juror
could be contacted during the trial, if need be.
The trial court denied the motion for a mistrial, finding:
While it does indeed appear that juror
number six accessed an electronic device
from which she learned about her son's
crisis, the event did occur contemporaneous
to the conclusion of the deliberations. One
must carefully analyze the timing. . . .
[I]t is clear that juror number six merely
put on her device after the deliberations
were complete. . . . [B]etween 11:08 a.m.
and 11:14 a.m., juror [six] informed [the
court] of the issue. A sidebar conference
was held regarding the issue and before the
discussion was completed, the jury returned
their verdict. The jury was then polled and
dismissed at 11:14 a.m.
It is intuitive that in the six minutes at
issue there could be no opportunity for
juror number six to influence the other
jurors. There simply was inadequate time to
do so. Thus, one must come to no other
conclusion that the deliberations were
complete after which juror number six
accessed her device. One must also come to
the conclusion that the jurors were at the
end of the deliberative process when they
requested a few minutes more. It is
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certainly reasonable, observing the process
as a whole, to find the jury was merely
completing the final form when juror number
six put on her cell phone and received her
distressing news. The deliberations were
completed at that point.
The court also noted plaintiff did not object to receiving
the verdict when the jury advised the court it had a verdict,
and did not request, before the jury was discharged, further
exploration into when juror six received the news of her son's
arrest in relation to when the jury concluded its deliberations.
On appeal, plaintiff argues the trial court abused its
discretion by denying his motion for a mistrial, contending the
"events clearly evidence[]" juror six learned of her son's
arrest only a short time before the jury reached its verdict.
Plaintiff asserts because she was in a state of stress, juror
six was unable to properly deliberate and may have rushed to
conclusions on some of the issues just to hasten deliberations.
"The grant of a mistrial is an extraordinary remedy that
should be exercised only to prevent manifest injustice."
Belmont Condo. Ass'n, Inc. v. Geibel, 432 N.J. Super. 52, 97
(App. Div. 2013) (citing State v. Ribalta, 277 N.J. Super. 277,
291 (App. Div. 1994)). "Whether manifest necessity mandates the
grant of a mistrial depends on the specific facts of the case
and the sound discretion of the court." State v. Allah, 170
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N.J. 269, 280 (2002) (citing State v. Loyal, 164 N.J. 418, 435
(2000)). In addition, when the basis for the requested mistrial
is alleged juror misconduct, the trial court is in the best
position to gauge the effect of the alleged juror impropriety
and defer to its decision on a motion for a mistrial. State v.
Harvey, 151 N.J. 117, 205 (1997).
In our view, the trial court did not abuse its discretion
when it denied plaintiff's motion for a mistrial. The court
carefully reviewed the timing of how events unfolded and
determined it unlikely the verdict was reached after juror six
accessed her phone. We agree with the court's assessment and
conclusions, and affirm its decision on plaintiff's motion for
the reasons set forth in its opinion.
E
We have considered plaintiff's remaining argument points,
and have determined they are without sufficient merit to warrant
discussion in a written opinion. See R. 2:11-3(e)(1)(E).
Affirmed.
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