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Rosner v. Lopyan

October 22, 2008

CAROLYN ROSNER AND MARIO ROSNER, PLAINTIFFS-APPELLANTS,
v.
KEVIN LOPYAN, M.D., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-2383-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 25, 2008

Before Judges Winkelstein, Fuentes and Gilroy.

Plaintiff Carolyn Rosner sued defendant Dr. Kevin Lopyan for medical malpractice. Her husband, plaintiff Mario Rosner, filed a consortium claim. All references in this opinion to plaintiff are to Carolyn Rosner.

A jury found that defendant deviated from the standard of care in his treatment of plaintiff, but concluded that the deviation was not a proximate cause of her injuries. On appeal, plaintiff raises two arguments: first, she claims that one of the jurors was biased in favor of doctors; and second, she asserts that the court coerced the jurors to reach a decision by informing them that if they did not reach a decision by 4:30 p.m. that day, a Friday, they would be required to return the following week. Both arguments are without merit.

Consequently, we affirm.

Defendant is a vascular surgeon who treated plaintiff in December 2002 for iliac artery occlusive disease. Plaintiff claims that he was negligent in treating her for bypass vascular surgery for her legs, causing her permanent damage, and requiring her to undergo additional treatment.

Jury selection began on October 30, 2007. Before beginning voir dire, the judge informed the jury pool that the trial was expected to "be completed by Friday of next week." In response to a question about scheduling, the judge informed the jurors, "I know the case will finish by Friday of next week which is November the 12th."

After a sufficient number of jurors without scheduling conflicts had been seated, the judge began questioning each juror individually, beginning with Juror Smith. While questioning him about his medical history, the following colloquy ensued:

THE COURT: Okay. Now, you're going to hear testimony that the plaintiff underwent a bypass surgery. It's a procedure where they take veins in the leg and they reroute them, okay. In addition to that after the surgery she underwent an additional procedure, an angioplasty which is a procedure by which the veins are opened up with the intrusion of a tube or something of that nature. I'm being very non-medical in my description for you, but my question to you is has that ever happened to you or any member of your family, those types of procedures? The angioplasty by the way could be also a heart angioplasty.

MR. SMITH: I had four stents put in.

THE COURT: Okay. How long ago was that, sir?

MR. SMITH: One two years ago and two the year before.

THE COURT: How about have you ever had an experience with a health care provider that left an impression upon you, it could be a good one or a bad one, that could affect your ability to be fair? Now, I'm not talking about having to wait in a doctor's office for a half hour, but something more than, has that ever happened to you?

MR. SMITH: Yes.

THE COURT: Okay. Could it in any way affect your ability to be fair to these people?

MR. SMITH: No.

THE COURT: How about the limited information that I gave you about what the nature of the case is and that is a medical negligence case?

MR. SMITH: I've got no problem with that.

Later in the proceeding, the court asked the attorneys if they had any additional questions for the potential jurors.

Plaintiff's attorney did not, but defendant's attorney did, engaging in the following side-bar discussion with the court:

MR. HALPIN: And Mr. Smith, I don't know if we need to talk to him at side-bar. He did have four stents put in. He wasn't specific as to what that was. I was trying to understand what that was and you had asked him the question of whether he had an experience good or bad and he said, yes, but and then you said would it affect his opinion, no. I'd like to know what that is.

THE COURT: I don't want to go into his medical. He had stents put [in] and you want to know whether it's in the heart or to the leg or something like that?

MR. HALPIN: Yes.

THE COURT: Okay, I'll ask him that.

MR. HALPIN: But you had asked him have you had an experience good or bad and he said yes.

MR. LANE: That's what he said.

THE COURT: I'm sorry?

MR. LANE: That was what he said. You know, and not like standing in the waiting room or anything like that.

THE COURT: I'll follow up with it.

(end of side-bar discussion)

THE COURT: Mr. Smith . . . . You indicated you had a stent put in and that would have had to do ...


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