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Garfinkel v. Kazam

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 10, 2008

LORI GARFINKEL, PLAINTIFF-APPELLANT,
v.
ERZA KAZAM, M.D., DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-2521-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 1, 2008

Before Judges Coburn and Chambers.

In this medical malpractice case, the jury returned a verdict in favor of defendant. Plaintiff, Lori Garfinkel, appeals, arguing for reversal and a new trial on the following grounds:

POINT I

THE JURY'S FINDING DR. KAZAM PROPERLY OBTAINED THE PATIENT'S INFORMED CONSENT PRIOR TO PERFORMING LASIK SURGERY WAS SO HEAVILY WEIGHTED AGAINST THE EVIDENCE THAT THE JUDGMENT ENTERING NO CAUSE FOR ACTION MUST BE VACATED AND A NEW TRIAL ORDERED

POINT II

THE JURY FOREPERSON'S FAILURE TO DISCLOSE THE FACT THAT SHE WAS THE COUSIN OF PLAINTIFF'S ESTRANGED HUSBAND FROM A CONTENTIOUS DIVORCE SO HEAVILY TAINTED THE DELIBERATION PROCESS THAT THE VERDICT MUST BE DEEMED INVALID REQUIRING THE JUDGMENT ENTERING NO CAUSE FOR ACTION BE VACATED.

We reject plaintiff's first point because she failed to move below for a new trial. An appellate court may not consider whether a verdict is against the weight of the evidence unless a timely motion on that ground was made in the trial court. R. 2:10-1; Fiore v. Riverview Med. Ctr., 311 N.J. Super. 361, 362-63 (App. Div. 1998).

Plaintiff's initial brief argues the second point without citing any legal authority and, more importantly, without the point having been raised in the trial court. Our Supreme Court has observed that

[i]t is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available "unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest."

[Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973) (citation omitted).]

Obviously the issue raised here involves neither jurisdiction nor a matter of great public interest. Defendant asserts, and plaintiff does not deny, that she was in attendance throughout the trial except for jury selection. Since plaintiff was in court throughout the trial, with the exception of jury selection, which she chose not to attend based on her counsel's advice, and was present when the verdict was returned, at which time the juror in question was addressed by name, she clearly had an opportunity to raise the issue of the juror's possible prejudice in the trial court. Moreover, that is so even if plaintiff only realized who the juror was when she obtained copies of the tape recordings of the trial for purposes of appeal. Since she had the opportunity to have the trial court address the issue and chose not to follow that course, she has no right for us to consider the point on appeal, and we decline to do so.

Affirmed.

20080410

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