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Rosner v. Lopyan


October 22, 2008


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

Per curiam.


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?


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


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?


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 with your heart, correct?

MR. SMITH: Yes, sir.

THE COURT: Okay. In all two cases that you had, I think you said two, if I recollect.

MR. SMITH: Two heart attacks.

THE COURT: Okay. I'm happy you're with us, but in both those cases you had the stents put into heart, not as opposed to perhaps in your legs or someplace else like that?

MR. SMITH: Right in my heart.

THE COURT: Yes, okay, and you also answered when I asked you about whether you've had a good or a bad experience, you said, yes. I don't know whether you meant you had a good experience or a bad experience.

MR. SMITH: I had a bad experience with a doctor.

THE COURT: Okay, but nothing happened with that particular experience, is that what you're saying?


(side-bar discussion)

THE COURT: We just have a question for you. You told us you had a bad experience. What's that all about?

MR. SMITH: Oh, just with the doctor. I didn't like him.

THE COURT: What type of doctor was he?

MR. SMITH: Cardiac.

THE COURT: A cardiac specialist. Did you feel he gave you bad medical care?

MR. SMITH: No, I just didn't like his attitude.

THE COURT: Him personally?

MR. SMITH: Personally didn't like him.

THE COURT: You didn't like his bedside manners I guess.

MR. SMITH: He had none.

There were no further questions for Juror Smith and both parties accepted him as a juror.

The trial was conducted between October 30 and November 9, 2007. On the latter date, the court charged the jury.

Regarding the definition of proximate cause, the judge instructed:

By proximate cause, I refer to a cause that, in a natural and continuous sequence, produces the harm and the resulting harm would not have occurred but for the negligent conduct of the defendant.

A person who is negligent is held responsible for any harm that results in the ordinary course of events from that person's negligence. This means that you must first find that the resulting harm would not have occurred but for the negligent conduct of the particular defendant. And secondly, you must find that the negligent conduct was a substantial factor in bringing about the resulting harm. And by substantial, I mean that the cause is not remote, trivial or inconsequential.

The court also instructed the jury as to the need for unanimity with respect to the verdict. The judge told the jury that "[the] verdict need not be unanimous. Any time any six of you have reached a consensus on any question, that means you have reached a verdict. So, every question that we ask will either be a vote of six to one or seven to zero." The judge also told the jury that its deliberations were private and confidential.

The seven-member jury began deliberating shortly after 2:00 p.m. At approximately 4:15 p.m., it sent the court a note asking for the definition of proximate cause. Before the jury entered the courtroom, the judge told the parties, "[b]ut before I do that, I have to ask them how long they want to stay tonight because we have to get that. Okay. Jury out. Of all the things - instructions, the most innocuous instructions."

Neither attorney objected.

When the jury entered the courtroom, the judge told it the following:

Mr. Foreman, I have your note and your question to me is what is the definition of proximate cause and I will give that to you.

But before I do that, let me just touch base with you about the scheduling. At 4:30 is like a magic hour around here. It's like the sheriff comes and they get overtime and there's all kinds of things. Now, I'm prepared to stay this evening for awhile longer. I don't know what you people or how close you are to coming to a decision.

If we don't resolve it today, the alternative is to come back on Tuesday. So, I just want to give you that particular scenario. Okay? And you'll have to discuss that amongst yourselves and get back to me as to what you think you can accomplish today, if anything. If you don't think we can accomplish it today, then we have to see how we can accommodate everybody's schedule. Monday is a holiday. It's the celebration of Veterans Day. So, the courts are closed on Monday.

Okay. So, get back to the question that you had posed to me and what is the definition of proximate cause. By proximate cause, I refer to a cause that, in a natural and continuous sequence, produces the harm and without which the resulting harm would not have occurred. A person who is negligent is held responsible for any harm that results in the ordinary course of events from the person's negligence. This means that you must find that the resulting harm to the plaintiff would not have occurred but for the negligent conduct of the defendant doctor.

Secondly, you must find that the negligent conduct of the doctor was a substantial factor in bringing about the resulting harm. And by substantial, I mean that the cause is not remote, trivial or inconsequential.

That's the definition. Okay?

So, you'll go back into the jury room. Let me know what you think you'd like to do for the rest of today. And then we'll see what happens. Okay? Thank you.

The jury returned a verdict within minutes after reconvening in the jury room. The jury found that defendant had not deviated from the standard of care in the performance of the bypass, but he had deviated from the standard of care in plaintiff's post-operative care. The jury further concluded that the deviation was not the proximate cause of plaintiff's injuries. The jury was not polled, nor did any juror object to the verdict on the record.

On November 14, juror number seven, Josephine Estelle, emailed plaintiff's counsel to express her "disappoint[ment]" with "some of the [j]ury members." She stated that, "from the beginning of [the] deliberations, it was 4 against 3; in favor of the Plaintiff. . . . After much discussion and reviewing of the evidence, [the four in favor of plaintiff] persuaded [one] [j]uror to change his mind." The email stated that after the judge's supplemental instructions, the jurors changed their minds "in a matter of seconds" because they did not want to come back the following Tuesday "and deal with the two injudicious, obtuse [j]urors." One of these "obtuse" jurors was Juror Smith, of whom Estelle wrote:

One was clearly driven by his belief that [d]octors should be worshiped because they saved his life some time ago. Although he never came out and said it in those exact words, this was clearly what was blocking his eyes and ears from absorbing the evidence before us. His mind was tainted by his own experience to the point that he could not be reasoned with.

Based on this email, plaintiff filed a motion for a new trial. The trial judge held a hearing, in which Estelle testified. In response to the judge's question regarding her statements about Juror Smith, she responded that her email was not a direct quote but that "[t]hose words were my thoughts and feelings from his comments." She further testified that Juror Smith made:

[c]omments such as, and this may not be word for word, but comments such as, you know, doctors are not, you know, miracle workers, I mean they saved my life and look what they did for me and it's tough to be a doctor, you got to cut him a break and along those lines.

The judge then questioned Estelle about the effect of the court's supplemental instructions:

THE COURT: And then you also talked about when the jury came out and they asked me to redefine proximate cause -

MS. ESTELLE: I actually was the one who wrote the question out because we were moving along rather well for a change at a certain point late in the day and then, you know, we said, okay, fine, we took another vote, let's go onto the next question and there seemed to be some, a few of the jurors were kind of like, well, I'm not sure if I understand exactly what that means -


MS. ESTELLE: - and we tried to explain it the best that we understood what it means and I said, you know what, maybe it's just best that we ask Judge Oles just so that we're all on the same page and we can move on quicker.


MS. ESTELLE: So that's why that happened.

THE COURT: All right. When I gave you the instructions, this was about four-thirty. I do recall and there's a transcript where I said to everybody let me know what you want to do because it's four-thirty and we'll either stay or come back the next day. Did the jury have any discussion about my comments?

MS. ESTELLE: Well, the comments that I heard immediately after we went into the jury room my opinion is that those comments put pressure on the jury . . . you know, the logistics here in this building are such that, you know, people start leaving, the lights start to go out, the overtime clock starts ticking. Those are just a couple of things that come to my mind.

THE COURT: Did the jury discuss that at all?

MS. ESTELLE: The discussion was that comments were made, yes, to the effect of well, it sounds like we better wrap this thing up or I'm not coming back next week, this is ridiculous, you know, I don't want to come back and, you know, Monday is a holiday and let's just wrap this up.

THE COURT: All right.

MS. ESTELLE: And we had made such progress until then and worked so hard I felt that once, I mean within minutes, a matter of a minute after we got back in that jury room we took another vote and I was the only person that didn't change my vote. I didn't want to come back Tuesday either, but I just felt it was a silly thing to do to just give up at that point and end it there simply because everybody felt it was inconvenient to come back.

THE COURT: But did they actually express that it's inconvenient for us to come back?

MS. ESTELLE: There were comments. Two of the jurors and I have to really think to remember which two, but one said, you know, well, you know, I have to say this is it for me, I'm not coming back next week and proceeded to fill out the form and another juror said, yeah, I agree.

THE COURT: Okay. Was there any discussion after I instructed them and defined proximate cause?

MS. ESTELLE: There was no further discussion of any kind.

THE COURT: No further discussion, okay.

MS. ESTELLE: And actually one of the jurors made a comment to the effect of, oh, if we had started from the last question and realized that we could end at this point if we just answer this no, we could have been out of here much faster.

Based on Estelle's testimony, the court denied plaintiff's motion for a new trial.

Against this background, we turn to plaintiff's first argument, that Juror Smith was not truthful during voir dire, in failing to disclose that he had a bias in favor of doctors.

Following the hearing, the trial judge rejected plaintiff's argument. In evaluating plaintiff's argument, we, as was the trial judge, are guided by the principle that "jury verdicts should be set aside in favor of new trials only with reluctance and then only in the cases of clear injustice." Crego v. Carp, 295 N.J. Super. 565, 577 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997); see also R. 4:49-1 (new trial motion should be granted only "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law").

We agree with the trial court that Estelle's allegations and testimony did not establish a clear injustice so as to warrant overturning the jury verdict. Estelle acknowledged that she could not recall the exact words that Smith used, and her comments were simply her expressions of what she believed he said. Notably, Smith testified that he could be fair and impartial. Although he indicated on voir dire that he had had a bad experience with a doctor, he did not indicate that the bad experience concerned the doctor's medical competence; rather, he did not like the doctor's bedside manner. We agree with the trial court that given Estelle's inability to recall exactly what Juror Smith said, and given Smith's testimony during voir dire that he could be fair and impartial, neither Estelle's testimony nor the contents of her email were sufficient to clearly and convincingly demonstrate that the verdict was a miscarriage of justice.

Plaintiff relies on Arenas v. Gari, 309 N.J. Super. 1, (App. Div. 1998), which also involved juror bias toward doctors.

We do not find that case to be analogous.

The juror in Arenas was a nurse who had difficulty with a particular doctor she had worked with, and she had filed a complaint against him. Id. at 16. The juror approached the court after she had been sworn and informed the court that she had concerns about her ability to be impartial:

the juror appeared to be doubtful of her ability to be fair, first stating 'I was questioning that last night,' then stating only 'I feel I could be impartial,' followed by 'I'm not really sure,' next 'I think I could be pretty fair, and finally answering 'uh-huh' when asked if she could put aside any preconceived ideas about doctors.

[Id. at 20-21.]

The defendant's counsel in Arenas asked that the juror be excused for cause because he had exhausted his preemptory challenges. Id. at 17. The judge denied counsel's request.

Ibid. On appeal, we reversed, observing that the juror was doubtful of her ability to be fair. Id. at 20-21. Here, that is not the case. Juror Smith unequivocally testified that he could be impartial.

Plaintiff also relies on Wright v. Bernstein, 23 N.J. 284 (1957). Wright involved a juror in an automobile accident case who, during voir dire, remained silent when asked if any member of his family had ever been involved in any accident cases. Id. at 291. The Court learned later in the trial that the juror's mother was a plaintiff in an on-going slip and fall case in the same court. Ibid. The Court found that a mistrial should have been granted immediately, reasoning:

What happened in this case had the effect of nullifying the purpose of the examination and was as effective as though the trial court had denied the right of challenge. The denial of the right of peremptory challenge is the denial of a substantial right. When it is not waived by conduct, it is prejudicial per se and harmful, and a party is not required to make an affirmative showing that the denial of his right to peremptory challenge had resulted in prejudice and injury to his cause of action on the merits.

[Id. at 295.]

Here, unlike in Wright, the record does not show that Juror Smith misled the court or the attorneys. Although he testified that he had a problem with a doctor's bedside manner, he also testified that he had suffered two recent heart attacks that required surgery to have stents inserted. Given the extent of his prior contacts with doctors, it is reasonable to assume that he would have had some confidence in doctors in that he had survived relatively serious medical conditions. His testimony is not analogous to the testimony of the juror in Wright, who misled the court and the parties. Plaintiff has not shown that, given Juror Smith's total experiences with doctors, she would have exercised a preemptory challenge to remove him from the jury. As the Court explained in State v. Cooper, 151 N.J. 326, 349-50 (1997), cert. denied, 528 U.S. 1084, 120 S.Ct. 809, 145 L.Ed. 2d 681 (2000), when a juror incorrectly omits information during voir dire, though a litigant is not required to demonstrate prejudice by showing that an improperly impaneled jury did not decide the case fairly, the litigant retains the burden to show that he or she would have exercised a preemptory challenge to exclude the juror. Here, plaintiff has failed to meet that burden.

Next, we turn to whether the trial court's supplemental instruction to the jury was coercive. Plaintiff asserts that the court coerced the jury into making an immediate decision when it advised the jury that it would have to return the following week for deliberations if it did not render a verdict that afternoon. We conclude that plaintiff's argument is without merit, as the court's instruction to the jury on this issue was appropriate.

First, we observe that plaintiff did not object to any part of the court's instruction. Thus, to be successful, plaintiff would have to demonstrate plain error. R. 2:10-2. Plaintiff has not demonstrated any error, let alone plain error.

The court told the jury that if it did not reach a verdict that Friday, it would have to return the next court day, which would have been the following Tuesday. There is no evidence that the jury was deadlocked at the time the court gave the instruction. Nor did the court threaten the jury with working over the weekend. What the judge said "cannot be objectively interpreted as coercing any individual member of the jury to forego his or her independent judgment of the case." State v. Barasch, 372 N.J. Super. 355, 362 (App. Div. 2004).

We are mindful of Estelle's testimony indicating that after the instruction was given, some jurors felt pressured "to wrap this thing up." Nevertheless, there was nothing improper about the court's instruction. The record does not indicate with any clarity why the jurors voted the way they did. Indeed, the jury obviously gave thought to plaintiff's case, having found defendant negligent in violating the standard of care. Simply stated, plaintiff has not presented compelling reasons to set aside the verdict.



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