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Maleki v. Atlantic Gastroenterology Associates

May 7, 2009

DORDANEH MALEKI, M.D., PLAINTIFF-APPELLANT/CROSS-RESPONDENT,
v.
ATLANTIC GASTROENTEROLOGY ASSOCIATES, P.A.; DHC; ACCESS; ANESTHESIA RESEARCH; BARRY KAUFMAN, M.D., INDIVIDUALLY; JOSEPH SPAAR, M.D., INDIVIDUALLY; JOHN SANTORO, D.O., INDIVIDUALLY; AND GARY ROSMAN, M.D., INDIVIDUALLY, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3064-04.

The opinion of the court was delivered by: Fisher, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued April 1, 2009

Before Judges Fisher, C.L. Miniman and King.

In this appeal, we reject the trial judge's determination that a typographical error in the jury verdict sheet, which mistakenly referred on three occasions to a single defendant as "defendants," caused jury confusion and warranted a new trial. Accordingly, we reverse the order granting a new trial on that basis.

Plaintiff Dordaneh Maleki, M.D., filed suit against defendant Atlantic Gastroenterology Associates, P.A. (AGA), as well as individual members of AGA's medical practice and other business entities, alleging a breach of her employment contract with AGA, equitable fraud and a breach of the implied covenant of good faith and fair dealing. Plaintiff was a board-certified gastroenterologist who entered into an employment relationship with AGA in 2000 for a period of years. The circumstances related to the formation of their agreement need not be explored here to any great degree. In essence, plaintiff claimed that at the end of the term of employment AGA failed to honor its promise to give her a full and equal share of the medical practice. Specifically, plaintiff claimed the right to a full interest not only in AGA but in what she claimed were two related entities, defendants DHC and ACCESS. She alleged that ACCESS was an entity that managed the surgical center where AGA doctors performed procedures on their patients. As part of the arrangement among these entities, AGA would transfer to ACCESS a portion of its gross income in management fees; ACCESS was wholly owned by DHC, 95% of which was owned by the individual defendants. Plaintiff argued that the value of AGA was reduced by this alleged siphoning of funds to the individual defendants and that the denial of an equal share of ACCESS and DHC provided her with a lesser interest in the medical practice than that received by the individual defendants.

At the beginning of the trial, counsel and the trial judge discussed how plaintiff's claims would be presented to the jury. The judge questioned the viability of plaintiff's equitable fraud claim, taking the view that a finding in plaintiff's favor on the contract claim would necessarily eviscerate the fraud claim, yet he made no dispositive ruling regarding the equitable fraud claim at that time.

Because plaintiff and AGA were the only contracting parties, the judge introduced the case to the jury in his opening remarks by referring only to plaintiff and AGA in his discussion of the contract claim. In his final instructions to the jury, however, the judge made reference to both "defendants" and "defendant" in identifying the target of plaintiff's contract claim, and, of further importance here, the jury verdict sheet posed three questions to the jury, each seeking the jury's finding as to the conduct of "defendants" instead of AGA or "defendant."*fn1 The jury returned a verdict in favor of plaintiff.

After the verdict was rendered, the accidental reference to "defendants" in the verdict sheet took flight. The judge paused as he described the judgment required by the verdict:

THE COURT: On the jury verdict, judgment will be entered in favor of the plaintiff and against -- I ducked the issue until now because I didn't know if I was going to deal with it now but, clearly, I'm going to enter judgment against [AGA] on the breach of contract claim on the theory that that was the party to the contract in the amount of the jury verdict $8,717,992.

The judge then stated he would "leave for another day the question of whether any judgment in any amount is to be entered against any of the other defendants."

AGA moved, in the alternative, for a stay of the judgment, a new trial, a judgment notwithstanding the verdict, or a remittitur. Plaintiff opposed the motion and cross-moved for the entry of a judgment against all named defendants. Although not asserted by either side, the judge sua sponte questioned, by way of a letter sent to counsel in advance of the motions' return date, whether his use of "defendants" instead of "defendant" in the verdict sheet created jury confusion,*fn2 and requested supplemental briefs.

In ruling upon the post-verdict motions, the judge rejected all the parties' contentions. Instead, he focused on his mistaken references to "defendants" in the jury charge and the verdict sheet. The judge observed that he "immediately" realized as the jury returned its verdict that there was a problem -- that he had "failed to make it clear... who the target defendant... was." The judge concluded that his use of the word "defendants" in the verdict sheet likely generated confusion, which necessitated a new trial on the issue of liability; he did not, however, believe that this circumstance required a new trial on damages. That is, the judge directed, by way of paragraph 3 of his order, a ...


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