On certification to the Superior Court, Appellate Division, whose opinion is reported at 233 N.J. Super. 84 (1989).
For reversal -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern and Garibaldi. The opinion of the Court was delivered by Clifford, J. Stein, J., concurring in part and dissenting in part.
This appeal explores the appropriate method for polling a jury in a civil case. Plaintiff Gaspare Ragusa and his parents sued Dr. Lau and other defendants not involved in this appeal, alleging medical malpractice. "Plaintiff" hereafter refers to Gaspare; "defendant" refers to Dr. Lau.
Plaintiff claims that Dr. Lau misdiagnosed a neck injury that plaintiff had suffered in a diving accident. At trial the court required a special verdict on the issues of negligence and proximate cause. Misreading the verdict, the foreman initially reported that the jury had found defendant not negligent. After another juror declared that that was an error, the foreman apologetically informed the court that the jurors agreed
unanimously that defendant had been negligent, but voted five to one that that negligence had not proximately caused plaintiff's injuries.
Pursuant to Rule 1:8-10, the court polled the jury on the proximate-cause issue. Explaining the procedure to the jury, the court stated that because the vote was not unanimous on the proximate-cause issue,
I have to do what we call polling, poll you and what that means is I have to make certain that there's no misunderstanding between you and [the foreman] and me, so I'm going to read the question again and tell you how I understand you voted on that question. Then, I am going to ask each one of you individually if I have correctly stated the jury verdict, and if I have you say "yes." If I've somehow misstated or misunderstood it, you say no, okay? (Emphasis added.)
Remarking that he understood the foreman to announce that the jury voted "no" on the proximate-cause issue "by a five to one vote," the judge proceeded to ask each juror if he had "correctly state[d] the jury verdict." Each responded affirmatively. At the close of the court's inquiry, plaintiff requested that "the jury [be] polled individually as to they, themselves, if they individually agree[d], with that verdict or not." The court denied that request as well as plaintiff's subsequent motion for a new trial.
The court's discussion on plaintiff's motion for a new trial indicates that it understood his contention on the polling point. It summarized plaintiff's argument: "what I should have done was ask each juror how he or she voted on that question. Juror number one, do you vote or did you vote yes or no on that question?" Although the judge acknowledged "that that way of polling the jury is the way it is done by most judges," he also believed that that was "not an appropriate way to do it."
The court suggested that such a procedure would unjustifiably give a party the "right to stare down the jurors as they cast their vote," and would contravene this State's policy concerning "the sanctity of the jury room." The court was not convinced that the benefits of eliminating the possibility that a vote was the product of peer pressure gained by requiring
jurors to declare their votes outweighed the harm from such a procedure. Nor was the court persuaded that such a procedure was appropriate simply because one juror had cried when the verdict was ...