STORM COLLETON VS. MARK BIEBEL (L-5125-12, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-5469-16T1
STORM COLLETON and
MELINDA COLLETON,
Plaintiffs-Appellants,
v.
MARK BIEBEL, DPM, MARK
DECOTIIS, DPM, BIEBEL &
DECOTIIS PODIATRY ASSOCIATES,
SHREWSBURY SURGICAL CENTER,
THEODORE KUTZIN, MD, and
ATLANTIC AMBULATORY
ANESTHESIA ASSOCIATES, LLC,
Defendants-Respondents.
_______________________________
Argued April 29, 2019 – Decided May 15, 2019
Before Judges Fasciale and Gooden Brown.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-5125-12.
Michael B. Zerres argued the cause for appellants
(Blume Forte Fried Zerres, & Molinari, attorneys;
Michael B. Zerres, of counsel and on the briefs; Robert
C. Sanfilippo, on the briefs).
Charles C. Koernig argued the cause for respondents
Mark Biebel, Mark DeCotiis, and Biebel & DeCotiis
Podiatry Associates (Kaufman Borgeest & Ryan, LLP,
attorneys; Charles C. Koernig, of counsel; Jonathan D.
Hallett, on the brief).
James M. Ronan, Jr. argued the cause for respondents
Theodore Kutzin and Atlantic Ambulatory Anesthesia
Associates (Ronan, Tuzzio & Giannone, PA, attorneys;
James M. Ronan, Jr., of counsel and on the brief; Nicole
M. Scillia, on the brief).
Judith A. Wahrenberger argued the cause for
respondent Shrewsbury Surgical Center (Ruprecht Hart
Ricciardulli & Sherman, LLP, attorneys; Judith A.
Wahrenberger, of counsel; Lindsay B. Beaumont, on
the brief).
PER CURIAM
This is a medical malpractice case primarily against two podiatrists (Dr.
Mark Biebel, DPM; and Dr. Mark DeCotiis, DPM), an anesthesiologist (Dr.
Theodore Kutzin), and a nurse (Janice Jones) (collectively defendants).1
Plaintiff Storm Colleton suffered permanent nerve damage following surgery to
repair a torn Achilles tendon. The case came down to a battle of the experts on
the standard of care applicable to the correct amount of tourniquet pressure
1
Plaintiff, and his wife Melinda Storm, who filed a per quod claim, (collectively
plaintiffs), had also sued Biebel and DeCotiis Podiatry Associates; Shrewsbury
Surgical Center as respondeat superior for nurse Janice Jones; and Atlantic
Ambulatory Anesthesia Associates (the other defendants).
A-5469-16T1
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applied to plaintiff's right thigh. Dr. Biebel, who performed the surgery, used
350mm/Hg of mercury as tourniquet pressure, which plaintiff contended was too
great.
The jury found that plaintiffs failed to prove defendants deviated from the
accepted medical standards of care. After the judge denied plaintiffs' motion for
a new trial, she entered a judgment of no cause of action. Plaintiffs argue
primarily that the judge made erroneous evidentiary rulings and failed to address
juror misconduct. We agree, reverse the judgment, and remand for a new trial
on all issues.
I.
Plaintiff was an avid martial arts participant. While fighting in a Kapap2
match, he kicked an opponent and felt a pop in his right leg. The next day
plaintiff consulted Dr. Biebel, who ordered an ultrasound and MRI of plaintiff's
right leg. Those tests revealed that plaintiff severely ruptured his Achilles
tendon. Dr. Biebel told plaintiff that corrective surgery was the best option, it
was a simple procedure, and he would be back to work as a State Trooper in four
to six weeks.
2
Kapap is an Israeli self-defense form focusing on hand-to-hand combat and
physical endurance. See https://en.wikipedia.org/wiki/Kapap.
A-5469-16T1
3
Plaintiff underwent the surgery at the Shrewsbury Surgery Center on
March 30, 2011. Dr. DeCotiis, who was Dr. Biebel's partner, assisted during the
surgery. Plaintiff returned home with a "pain pump" attached to the back of his
right leg. The pump intravenously fed pain medication into his leg through a
catheter that Dr. Kutzin had inserted into the soft tissue behind the knee, an area
known as the popliteal fossa. After a couple of days, the medicine was
exhausted and plaintiff removed the pump and catheter as directed by the
discharge instructions. Initially, he felt no pain when he removed the catheter,
nor did he notice any bleeding or swelling, but shortly after removing the pump,
plaintiff felt intense pain in his leg. Plaintiff took Percocet, which did not relieve
the pain.
Dr. Biebel then met plaintiff at the emergency room, where he received
morphine. The doctor was unsure what was causing the pain, but noted swelling
in the upper part of plaintiff's right foot. There was no sign of swelling or
bleeding in the leg itself. He instructed plaintiff to come to his office if the pain
did not subside.
Thereafter, plaintiff followed up with Dr. Biebel, who was still unsure of
the source of the pain, so he sent plaintiff to a pain management doctor who
prescribed several pain control medications, none of which worked. Dr. Biebel
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referred plaintiff to a physiatrist for nerve conduction studies, which showed Dr.
Biebel that plaintiff had no nerve function from his right knee downward.
Plaintiff then sought second opinions from numerous medical specialists.
He underwent physical therapy and consulted with an orthopedic surgeon, both
to no avail. A neurologist performed a second nerve conduction study, which
again revealed significant nerve damage in plaintiff's right leg. During this
period, plaintiff's right foot and leg pain persisted. He experienced "electric
shocks" that awakened him in the middle of the night, and he suffered from
substantial muscle atrophy.
In March 2012, plaintiff consulted Dr. Lee Dellon, a peripheral nerve
surgeon from Maryland. Dellon performed two separate surgical procedures
that restored some feeling to plaintiff's leg and foot but did not alleviate the toe
contractures. The surgery resulted in pain abatement, but sporadic electric
shocks continued.
In January 2014, Dr. Martin O'Malley, who is a foot and ankle specialist,
surgically removed the tendons in plaintiff's toes, which helped plaintiff walk.
Dr. O'Malley inserted metal screws to straighten plaintiff's toes, and plaintiff's
right foot had increased from a size nine to an eleven doublewide, which
required special shoes.
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Plaintiff's theory at trial was that his nerve injuries were caused by
compression from over-pressurization of the mid-thigh pneumatic tourniquet
used during the Achilles repair surgery. He blamed Dr. Biebel for setting the
tourniquet pressure too high. As to Dr. DeCotiis, Dr. Kutzin, and the nurse, his
theory was that they failed to intercede and insist that Dr. Biebel lower the
pressure.
Plaintiff presented expert testimony from Dr. Arup De, an
anesthesiologist. He noted that plaintiff's tourniquet was in place for forty-eight
minutes at a pressure of 350mm/Hg of mercury. Dr. De concluded that Dr.
Kutzin deviated from the accepted standard of care by not questioning t he use
of such a high tourniquet pressure.
Plaintiff also presented expert testimony from Erica Leach, a licensed
registered nurse. Ms. Leach identified guidelines for perioperative practice
published in 2007 by the Association of periOperative Registered Nurses
(AORN).3 The guidelines cautioned to use a minimum amount of pressure for
pneumatic tourniquets. She stated that Jones departed from accepted standards
3
AORN is a professional association for perioperative nurses that publishes
guidelines to "define standardized practice for perioperative professionals."
https://www.aorn.org/about-aorn (last visited Apr. 29, 2019).
A-5469-16T1
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of nursing care by failing to advocate for her patient, and that Jones should have
been aware of the AORN guidelines and spoken to Dr. Biebel about the over-
pressurization.
Plaintiff subpoenaed Dr. Marshall Allegra, an orthopedic surgeon and
treating physician, to testify as a fact witness. He treated plaintiff from October
2011 through May 2012. During his first visit, plaintiff complained of pain,
stiffness, numbness, and a limp in his right lower extremity. Allegra performed
a physical examination and noted marked atrophy of the muscles in plaintiff's
right leg; numbness and paresthesia from the calf to just above the knee;
numbness and paresthesia in the foot; a hammer-toe deformity of the great toe;
and decreased sensation on the underside of the foot. Dr. Allegra recommended
physical therapy, an electromyography (EMG),4 and orthosis for his shoes. In
his notes from the first exam, he wrote that plaintiff had undergone a successful
Achilles tendon repair surgery, but was suffering neurological damage "possibly
from a tourniquet use." When plaintiff returned to see Dr. Allegra in October
2011, he brought the new EMG reports and complained of increasing pain in his
right heel. Dr. Allegra noted "evidence of peripheral nerve damage, probably
4
A nerve conduction study is the part of an EMG that looks at peripheral
nervous system health.
A-5469-16T1
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secondary to a tourniquet," and gave plaintiff an analgesic painkiller to
desensitize his foot.
Dr. Allegra examined plaintiff in January 2012, and observed atrophy of
the right leg and clawing of the lesser toes of the right foot. In February 2012,
Dr. Allegra noted increased sensitivity on the sole of the right foot, persistent
atrophy, and clawing of the toes. An EMG study showed sciatic neuropathy.
Dr. Allegra concluded that "[t]here ha[d] been some progression since August
2011, but nothing that was significant," and that any further improvement was
not likely. When plaintiff saw Dr. Allegra for the last time in May 2012, he had
undergone decompressive surgery with Dr. Dellon.
Plaintiff produced testimony from Dr. Christopher Winfree, his treating
neurosurgeon. Dr. Winfree examined plaintiff and concluded that plaintiff
"most likely had a circumferential compression" of the nerves that had been
subjected to pressure around the leg. He believed that the most likely cause of
the injury was the tourniquet: "there's really nothing else in the medical record
that would have, to my knowledge, caused the circumferential pressure injury
of those nerves." With regard to the contractures of plaintiff's toes, Dr. Winfree
believed they resulted from the compression injuries, particularly to the tibial
nerve.
A-5469-16T1
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Plaintiff also produced testimony from his clinical neurophysiologist, Dr.
Paul Kostoulakos, who verified plaintiff had evidence of neuropathy of the tibial
and peroneal nerves and innervation in multiple muscles. He concluded that
"there was continued tibial and peroneal nerve dysfunction as well as acute and
chronic denervation changes appreciated in multiple muscles more distally in
the lower extremity on the right." Dr. Kostoulakos believed that plaintiff's
problems were the result of a compressive injury related to the Achilles repair
surgery, and that it "could be surgically related phenomenon due to placement
or for tourniquet time."
Plaintiff presented expert testimony from Dr. David Plotkin, a podiatric
physician, who had performed many Achilles tendon repairs. Dr. Plotkin
explained that most Achilles injuries are partial tears, but plaintiff's was much
more extensive because the tendon was almost completely severed. As to the
appropriate tourniquet pressure, Dr. Plotkin believed a reasonable tourniquet
compression for plaintiff would have been approximately 250 mm/Hg. In Dr.
Plotkin's opinion, Dr. Biebel deviated from the accepted standard of care by
setting the tourniquet pressure unnecessarily high. He believed that Dr.
DeCotiis deviated from the accepted standard of care by failing to question Dr.
Biebel's decision to set the tourniquet pressure at 350 mm/Hg.
A-5469-16T1
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After the verdict, plaintiff and his counsel were conferring in the
courthouse parking lot when four jurors approached them and told plaintiff they
were sorry. One of the jurors then went up to plaintiff, grabbed him by the arms,
and said that her son and his son were friends. Plaintiff's counsel wrote to the
judge the next day describing the incident. The judge found counsel's filings to
be deficient and saw no prejudice to plaintiff from the juror's personal
revelation.
II.
We begin by addressing plaintiffs' argument that the judge abused her
discretion by precluding Dr. Plotkin from testifying about facts that he reviewed
and relied upon in rendering his expert opinion, specifically facts contained in
Dr. O'Malley's operative report. Although it was important to Dr. Plotkin's
testimony, and even though it was undisputed, the judge precluded Dr. Plotkin
from mentioning the amount of tourniquet pressure of 250 mm/Hg that Dr.
O'Malley had used.
The tourniquet pressure used during the January 2014 surgery was
relevant because it established a basis for Dr. Plotkin's opinion that 250 mm/Hg
was the appropriate tourniquet pressure. It showed that it was possible to
achieve hemostasis on plaintiff's right leg at a pressure of 250 mm/Hg. Although
A-5469-16T1
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that fact, in and of itself, is not determinative of the standard of care, Dr. Plotkin
reviewed and relied on Dr. O'Malley's operative report when giving his own
expert opinions about whether tourniquet pressures other than 350 mm/Hg may
have been effective.
We review a trial judge's evidentiary rulings for abuse of discretion.
Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). "[T]he latitude initially afforded to
the trial [judge] in making a decision on the admissibility of evidence – one that
is entrusted to the exercise of sound discretion – requires that appellate review,
in equal measures, generously sustain that decision, provided it is supported by
credible evidence in the record." Estate of Hanges v. Metro. Prop. & Cas. Ins.
Co., 202 N.J. 369, 384 (2010).
Dr. O'Malley did not testify during the trial. The information contained
in his operative report – specifically the amount of tourniquet pressure – would
therefore be hearsay. "Hearsay consists of three classic elements: (1) a
'statement;' (2) 'other than one made by the declarant while testifying at the
[present] trial or hearing;' and (3) offered in evidence for its truth, i.e., 'to prove
the truth of the matter asserted' in the statement." James v. Ruiz, 440 N.J. Super.
45, 59 (App. Div. 2015) (alteration in original) (citing N.J.R.E. 801(c)). Hearsay
A-5469-16T1
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is inadmissible unless the statement falls within one of several recognized
exceptions.
Here, reference in the operative report to the tourniquet pressure falls
under a recognized hearsay exception, and a separate evidence rule pertaining
to facts or data that a testifying expert has reasonably relied on in rendering
expert opinions. The applicable hearsay exception is N.J.R.E. 803(c)(6), which
states:
A statement contained in a writing or other record of
acts, events, conditions, and, subject to [N.J.R.E.] 808,
opinions or diagnoses, made at or near the time of
observation by a person with actual knowledge or from
information supplied by such a person, if the writing or
other record was made in the regular course of business
and it was the regular practice of that business to make
it, unless the sources of information or the method,
purpose or circumstances of preparation indicate that it
is not trustworthy.
The operative report falls under this exception. N.J.R.E. 803(c)(6) specifically
references N.J.R.E. 808, which states:
Expert opinion which is included in an admissible
hearsay statement shall be excluded if the declarant has
not been produced as a witness unless the trial judge
finds that the circumstances involved in rendering the
opinion, including the motive, duty, and interest of the
declarant, whether litigation was contemplated by the
declarant, the complexity of the subject matter, and the
likelihood of accuracy of the opinion, tend to establish
its trustworthiness.
A-5469-16T1
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In applying this rule, "case law in our State has traditionally admitted
'routine' findings of experts contained in medical records that satisfy the
business record exception, but has excluded 'diagnoses of complex medical
conditions' within those records." James, 440 N.J. Super. at 63 (quoting State
v. Matulewicz, 101 N.J. 27, 32 n.1 (1985)). The amount of tourniquet pressure
used is neither a diagnosis nor a complex medical condition. The parties
recognize that it is an undisputed fact.
The judge precluded the testimony, in part, because doing so would
deprive defendants' counsel from cross examining Dr. O'Malley. Of course,
under N.J.R.E. 808, "medical opinions in hospital records should not be admitted
under the business records exception where the opponent will be deprived of an
opportunity to cross-examine the declarant on a critical issue such as the basis
for the diagnosis or cause of the condition in question." Nowacki v. Cmty. Med.
Ctr., 279 N.J. Super. 276, 282-83 (App. Div. 1995). "If the requirements of
[N.J.R.E.] 808 are met, and a testifying expert has reasonably relied upon the
non-testifying expert's opinions, then the testifying expert may be permitted to
refer to that absent expert's opinions in the course of explaining his or her own
opinions in court." James, 440 N.J. Super. at 64. But Dr. Plotkin relied on facts
in the report, not opinions.
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Our evidence rules, under certain circumstances, allow experts to rely on
hearsay. N.J.R.E. 703 states:
The facts or data in the particular case upon which an
expert bases an opinion or inference may be those
perceived by or made known to the expert at or before
the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or
inferences upon the subject, the facts or data need not
be admissible in evidence.
Thus, under this rule, "a testifying expert may refer to 'facts or data' provided
by another source, even though expressed through a hearsay statement." James,
440 N.J. Super. at 65. The testifying expert may rely on a non-testifying expert's
examination so long as the information is of a type reasonably relied on by
experts in the field. Ibid. The operative report – and its reference to the amount
of tourniquet pressure Dr. O'Malley used on plaintiff – is of a type that experts
in the field rely, as Dr. Plotkin explained.
The judge precluded other witnesses from testifying about whether
plaintiff had ever had a tourniquet pressure of 250 mm/Hg. For example, on
cross-examination, plaintiffs' counsel asked Dr. Biebel if he knew whether
plaintiff had ever had a tourniquet pressure of 250 mm/Hg. And plaintiffs'
counsel questioned Dr. Biebel's podiatric expert (Dr. Michael Downey) about
whether such pressure had ever been successfully used on plaintiff. Plaintiffs'
A-5469-16T1
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counsel attempted to establish that doctors were able to achieve a right thigh
hemostasis at a pressure of 250 mm/Hg. In fact, Dr. Downey noted the
tourniquet pressure applied by Dr. O'Malley, and Dr. Downey had testified about
the subject at his deposition. But the judge sustained objections by defendants'
counsel to these questions.
In sustaining the objections, the judge explained – relying on N.J.R.E. 403
– that the probative value of the testimony was outweighed by its prejudicial
affect. But to be excluded under this rule, the "probative value [must be]
substantially outweighed by the risk of . . . undue prejudice[.]" Here, plaintiff's
tourniquet pressure for the 2014 surgery was highly probative to Dr. Plotkin's
opinion on the standard of care. And it showed that lower pressure would have
been successful. We conclude that the probative value was not substantially
outweighed by any prejudicial affect.
III.
Plaintiffs maintain that the judge abused her discretion by allowing Dr.
Allegra to render expert opinion testimony on the applicable standard of care.
Plaintiffs argue that Dr. Allegra – as a treating physician – could testify about
his diagnosis and treatment of plaintiff, but that specifically referring to the
A-5469-16T1
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appropriateness of the tourniquet pressure defendants used during the surgery
was improper.
On cross-examination, Dr. Allegra said that he regularly used mid-thigh
tourniquets as part of his practice, and that he was familiar with appropriate
duration and pressure settings for their use. At this point, plaintiff's counsel
objected, arguing that the line of questioning was outside the scope of direct
examination and that Dr. Allegra had testified as a fact witness, not an expert.
The judge overruled the objection. 5
Dr. Allegra, who was friends with Drs. Biebel and DeCotiis, testified that
350 mm/Hg was a generally accepted pressure setting for a mid-thigh tourniquet.
He stated that – hypothetically – if the tourniquet used in plaintiff's surgery had
been applied for forty-eight minutes at a setting of 350 mm/Hg, he would
reconsider his opinion that the tourniquet was the cause of plaintiff's injury.
When asked if he would reconsider his conclusion that the tourniquet was the
"probable" cause of plaintiff's injury, he responded:
In my career, I've done over 10,000 surgical
patients or procedures. And very frequently I've used
pressures of 350, even higher on some patients over 400
sometimes. And on one hand [plaintiff] clearly shows
involvement of nerves and muscles below where a
5
Plaintiff's counsel renewed his objection repeatedly throughout Dr. Allegra's
cross-examination, and all objections were overruled.
A-5469-16T1
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tourniquet was applied. However, on the other hand[,]
I have never had a case like this in my practice, and I'm
unaware of any other physicians who had such an
incident.
So saying that it's possibly or probably the
tourniquet, it may well be true. But I think this is a very
unfortunate thing if it is. Because I would have dozens
of patients like this in my practice.
Dr. Allegra elaborated:
[T]he 350 [mm/Hg] for less than one hour, to have this
type of injury, would be really unusual, I've never seen
it. However, I can't explain why he would have the type
of distribution of symptoms he has without it. So that
would make me believe that there could be some
underlying problem, such as a low grade chronic
compartment syndrome, or some condition which
would predispose him for a myolysis, a destruction of
muscle, because I've used this pressure many, many
times, I know lots [of] people use it, I've never seen
anything like this. So it's unfortunate that it happened
to him, but I just, on the one hand, yes, it would match
the distribution, on the other hand, I just don't see that
as an extreme pressure for an extreme amount of time.
So, I'm at a loss for this.
Dr. Allegra reiterated that 350 mm/Hg was an appropriate pressure setting for a
mid-thigh tourniquet.
In Stigliano v. Connaught Laboratories, Inc., 140 N.J. 305, 314 (1995),
the Court held that a treating physician testifying as a fact witness is permit ted
A-5469-16T1
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to testify about the cause of the patient's disease or injury, because causation is
an essential part of diagnosis and treatment.
Although the treating doctors are doubtless "experts,"
in this case they are more accurately fact witnesses.
Their testimony relates to their diagnosis and treatment
of the . . . plaintiff. In this context, moreover, the
characterization of the treating doctors' testimony as
"fact" or "opinion" creates an artificial distinction. A
determination of causation partakes of both fact and
opinion. The critical point is that the treating doctors
to treat their patients must determine the cause of a
disease, whether that determination is characterized as
fact or opinion.
As fact witnesses, the treating doctors may testify
about their diagnosis and treatment of [the plaintiff's]
disorder, including their determination of that
disorder's cause. Their testimony about the likely and
unlikely causes of [the plaintiff's] . . . disorder is factual
information, albeit in the form of opinion.
[Ibid.]
Significantly, the Court distinguished – as do we – the facts before it from those
in Piller v. Kovarsky, 194 N.J. Super. 392 (Law Div. 1984), and Serrano v.
Levitsky, 215 N.J. Super. 454 (Law Div. 1986), where the defendant-doctors
had sought to ask treating physicians not about their treatment of the plaintiffs,
but about the defendants' alleged malpractice. Stigliano, 140 N.J. at 314-15.
Dr. Allegra's testimony went to the standard of care.
A-5469-16T1
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Dr. Allegra's testimony concerning plaintiff's complaints, physical
examination, and EMG tests were appropriate, as was the fact that Dr. Allegra
diagnosed plaintiff as possibly suffering from a tourniquet injury. The question
posed on cross-examination concerning whether Dr. Allegra was aware of the
tourniquet's duration and pressure setting was also appropriate as it related to
the basis of Allegra's diagnosis. Once Dr. Allegra stated, however, that he was
not aware of the actual tourniquet setting and did not consider that in his
diagnosis, questioning on the topic should have stopped.
Asking Dr. Allegra whether 350 mm/Hg is an accepted tourniquet
pressure went beyond any information he used in diagnosing and treating
plaintiff. Likewise, asking him if his diagnosis would have changed if he knew
the pressure used was 350 mm/Hg relied on facts not provided to him by plaintiff
and not considered by him in reaching his diagnosis. Most egregiously, Dr.
Allegra's testimony that he had done over 10,000 surgical procedures and
frequently used pressures of 350 mm/Hg without seeing the type of injury
suffered by plaintiff, relied on his experience as a medical expert and directly
related to defendants' alleged malpractice. Moreover, his speculation that
plaintiff may have some underlying problem, such as a low grade chronic
compartment syndrome, that may have predisposed him to myolysis was an
A-5469-16T1
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expert opinion based on nothing other than defense counsel's representation of
the tourniquet setting during plaintiff's surgery.
Given the importance of the tourniquet pressure issue, the error in
allowing Dr. Allegra to offer expert testimony was not harmless. See
Delvecchio v. Twp. of Bridgewater, 224 N.J. 559, 581 (2016) (analyzing the
judge's mishandling of treating physician's testimony under harmless error
standard). As observed in Stigliano, "the treating doctors may be the only
medical witnesses who have not been retained in anticipation of trial. A jury
could find the treating doctors' testimony to be more impartial and credible than
that of the retained experts." 140 N.J. at 317.
Defendants' counsel emphasized the importance of Dr. Allegra's
testimony. For example, counsel remarked that plaintiff's own witness testified
no one has ever seen an injury from 350 mm/Hg; Dr. Allegra has used 350
mm/Hg in 10,000 cases; and Dr. Allegra, says 350 mm/Hg is the number. Given
Dr. Allegra's status as a treating physician and the significance placed on his
testimony, there is a reasonable likelihood that the improper testimony
contributed to the verdict against plaintiff and thus denied him a fair trial. State
v. Macon, 57 N.J. 325, 337-38 (1971); Persley v. N.J. Transit Bus Operations,
357 N.J. Super. 1, 9 (App. Div. 2003).
A-5469-16T1
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IV.
Finally, plaintiffs argue the judge mishandled their allegation of juror
misconduct. In the parking lot after the jury returned its verdict, juror number
two approached plaintiff, grabbed him by the arms, and stated that her son was
friends with plaintiffs' son. Four jurors approached plaintiff and apologized.
Plaintiffs contend that the judge failed to, at a minimum, question juror number
two about what she had said to see whether the relationships impacted her ability
to be fair and impartial, and whether it affected deliberations.
Parties to an action "are entitled to have each of the jurors who hears the
case, impartial, unprejudiced and free from improper influences." Panko v.
Flintkote Co., 7 N.J. 55, 61 (1951). Indeed, the "right to be tried before an
impartial jury is one of the most basic guarantees of a fair trial." State v. Loftin,
191 N.J. 172, 187 (2007). "That constitutional privilege includes the right to
have the jury decide the case based solely on the evidence presented at trial, free
from the taint of outside influences and extraneous matters." State v. R.D., 169
N.J. 551, 557 (2001).
It is well settled that the test for determining
whether a new trial will be granted because of the
misconduct of jurors or the intrusion of irregular
influences is whether such matters could have a
tendency to influence the jury in arriving at its verdict
in a manner inconsistent with the legal proofs and the
A-5469-16T1
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[judge]'s charge. If the irregular matter has that
tendency on the face of it, a new trial should be granted
without further inquiry as to its actual effect. The test
is not whether the irregular matter actually influenced
the result, but whether it had the capacity of doing so.
The stringency of this rule is grounded upon the
necessity of keeping the administration of justice pure
and free from all suspicion of corrupting practices.
[Panko, 7 N.J. at 61-62.]
Where a new trial is sought because of the misconduct of a juror, "the motion
should be determined with a view, not so much to attainment of exact justice in
the particular case, as to the ultimate effect of the decision upon the
administration of justice in general." Id. at 62-63 (internal quotation marks and
citations omitted).
"When there are allegations of jury misconduct, 'the trial judge must make
a probing inquiry into the possible prejudice caused by any jury irregularity,
relying on his or her own objective evaluation of the potential for prejudice
rather than on the jurors' subjective evaluation of their own impartiality.'"
Barber v. Shop-Rite of Englewood & Assocs., 406 N.J. Super. 32, 54 (App. Div.
2009) (quoting State v. Scherzer, 301 N.J. Super. 363, 487-88 (App. Div. 1997)).
"'[T]endency' to influence the verdict – not probability or likelihood – is the
standard for determining whether a new trial should be granted." Id. at 56.
A-5469-16T1
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[Courts] have recognized two exceptions to the
general rule that jury verdicts shall not be disturbed
because of what may have been said by jurors during
their deliberations. First, where a juror informs (or
misinforms) his colleagues in the jury room of facts
about the case, based on his personal knowledge, which
facts were not introduced into evidence at the trial, the
resultant verdict may be set aside. And, where a juror
by his comments in the jury room manifests racial or
religious bigotry against a defendant, we have upheld
the trial [judge']s action in granting a new trial.
[State v. Athorn, 46 N.J. 247, 251-52 (1966) (citations
omitted).]
Here, juror number two's revelation concerning her son's friendship with
plaintiffs' son is disconcerting. Several critical questions remained unanswered.
It is unknown whether the juror discussed the substance of the case with her son,
whether she learned any information about plaintiffs that was not presented as
evidence at trial, whether she discussed any such information with other jurors,
and whether her son's relationship with plaintiffs' son influenced her
deliberations.
Plaintiffs argue that the judge should have at least questioned juror
number two. Due process does not require a new trial every time a juror has
been exposed to outside influence. R.D., 169 N.J. at 559. Determining whether
a jury has been tainted requires the trial judge to consider the gravity of the
information, the demeanor of the juror, and the overall impact of the matter on
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the fairness of the trial. Ibid. The abuse of discretion standard of review applies
when reviewing such a determination by the trial judge. Ibid.In R.D., the Court held that where a juror was exposed to mid-trial
publicity, the judge was "obliged to interrogate the juror, in the presence of
counsel, to determine if there is a taint; if so, the inquiry must expand to
determine whether any other jurors have been tainted thereby." Id. at 558.
A juror's awareness of outside information gives rise to a presumption of
prejudice, Scherzer, 301 N.J. Super. at 486-87, and the judge has an obligation
to determine if the information had the capacity to influence the verdict, State
v. Grant, 254 N.J. Super. 571, 584 (App. Div. 1992). If it had such a capacity,
the judge is required to question the jurors individually "in order to determine
precisely what was learned, and establish whether they are capable of fulfilling
their duty to judge the facts in an impartial and unbiased manner[.]" State v.
Bey, 112 N.J. 45, 87 (1988).
Here, the verdict had already been reached. Questioning juror number
two had no potential to disrupt jury deliberations. The fact that the juror had a
personal connection to plaintiffs, yet chose not to alert the judge to the situation,
was disruptive of the orderly administration of justice and potentially prejudicial
to plaintiffs. The fact that their sons were friends does not automatically mean
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that juror number two was sympathetic to plaintiffs. Indeed, it is possible to
imagine any number of petty rivalries or jealousies that would engender the
opposite result. The only way to verify exactly what happened was through a
post-verdict interrogation. The judge abused her discretion by failing to conduct
such an interrogation.
To the extent we have not addressed any remaining argument raised by
plaintiffs, we conclude that they are without sufficient merit to warrant attention
in this opinion. R. 2:11-3(e)(1)(E).
Reversed and remanded for a new trial. We do not retain jurisdiction.
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