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Cohen v. Community Medical Center

June 30, 2006


On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-818-99.

The opinion of the court was delivered by: Sapp-peterson, J.S.C. (temporarily assigned).



Argued October 19, 2005

Before Judges Stern, Grall and Sapp-Peterson.

In this medical malpractice action, we address prophylactic measures a trial judge should employ when confronted with pretrial and mid-trial publicity. Plaintiff Gerald Cohen appeals from the February 24, 2003, order entering judgment after a jury verdict in favor of defendants Community Medical Center (CMC), David Chung, M.D.*fn1, Ian D. Samson, M.D., Pier Luigi Pieroni, M.D., and Lakewood Surgical Group (LSG). We now reverse.

On March 9, 1999, plaintiff filed a four-count medical malpractice complaint against CMC and Dr. Chung, alleging they deviated from acceptable standards of care in the diagnosis and treatment of his left foot. The complaint was later amended to add Dr. Samson, Dr. Pieroni, and LSG as defendants. Defendants filed answers to the complaint and upon completion of discovery, trial was scheduled for January 30, 2003.

One week prior to the scheduled trial date, the attorneys for both sides contacted the presiding judge to jointly request a trial adjournment. The request was in response to the anticipated statewide strike in the medical community, slated to commence on February 3, 2003. The presiding judge denied the request, believing that concerns of potential bias that might flow from the doctors' impending strike could be effectively addressed through voir dire.

Jury selection commenced on January 30, 2003. On that same day, the lead story on the front page of the Ocean County Observer edition of the Asbury Park Press was an article entitled, "Insurance issue could shut ER." A bullet point under the headline stated, "If Community Medical Center can't secure insurance for its ER doctors, it could be forced to close." Alongside the article was a photograph depicting CMC. Under the photograph was another headline stating, "If Community Medical Center doesn't secure insurance for its emergency department physicians by 11:59 p.m. Friday, the state's busiest ER may be forced to close." The story continued on page four where there were two more articles discussing the doctors' strike; "Southern Ocean doctors will join statewide job action" and "Coalition: Doctors are targeting wrong enemy." All three articles discussed the rising cost of medical malpractice insurance, which doctors attributed to high jury verdict awards in medical malpractice lawsuits, and the impact such awards were having upon doctors' ability to practice medicine. Plaintiff's counsel also alerted the court to a full-page ad, featured in the Asbury Park Press.

Just before the panel was brought into the courtroom for voir dire, plaintiff's counsel again raised the issue of the newspaper article that appeared in the Asbury Park Press that morning, as well as the fact that the article specifically focused on defendant CMC. He renewed his request for an opportunity to present the issue to the presiding judge, which the judge denied because he believed the issue was really one of impaneling a fair panel, an issue he could address. The judge considered the age of the case and apparently also believed the controversy surrounding the high cost of medical malpractice insurance was not going to change. He therefore concluded an adjournment would not "accomplish anything" because the parties would "face the same problem whether it's tomorrow, today, two weeks down the road or a month down the road." The judge indicated that he would "deal with the issue when I deal with . . . the jury."*fn2 Plaintiff's counsel responded by pointing out, "today's article focuses on the defendant and the part of the defendant's institution, their emergency room, that is here today. It's much more specific." At that point, defendant Samson's attorney advised the court that Samson had written a letter to the editor of the Asbury Park Press, which Samson thought may be published within the next two days.

Although the tape of this discussion is inaudible in part, it appears the judge was also willing to instruct the jurors not to read the letter written by Samson, should it be published. Samson's attorney stated he did not want "to focus upon Samson, so that jurors say he's leading the charge." He told the judge he wanted to think about it. The court agreed "to do whatever counsel want[ed]." Plaintiff's counsel, however, remained steadfast in his position that the jurors should be instructed not to read articles related to the strike and medical malpractice insurance.

The testimonial stage of the trial commenced January 31, 2003. It recessed for the weekend and then resumed the following Monday. On February 6, 2003, the trial was again recessed because of an anticipated snowstorm the next day and because one of the remaining six jurors had a prearranged business trip the following week. The trial resumed on February 19, 2003. The next day, the jury returned a verdict of no cause in favor of all defendants. This appeal followed. We granted the motion of the New Jersey Chapter of the Association of Trial Lawyers of America (ATLA-NJ) to appear amicus curiae.

Plaintiff and ATLA-NJ raise a number of points on appeal, but we focus on plaintiff's contention that the court failed to give appropriate cautionary instructions. We agree.

Concerns surrounding juror impartiality due to adverse publicity arise in civil as well as criminal trials. Article 1, Paragraph 9 of the New Jersey Constitution "guarantees a civil litigant a right to an impartial jury." Ward v. Merrimack Mut. Fire Ins. Co., 312 N.J. Super. 162, 165 (App. Div. 1998). See also Catando v. Sheraton Poste Inn, 249 N.J. Super. 253, 258-59 (App. Div.), certif. denied, 127 N.J. 550 (1991). Thus, jurors in all cases "must be 'as nearly impartial as the lot of humanity will admit.'" State v. Fortin, 178 N.J. 540, 575 (2004) (quoting State v. Williams, 93 ...

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