On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-17265-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Messano.
Plaintiff Rhonda Geschke appeals from an order dismissing with prejudice her complaint against defendants Bally's Park Place, Inc. (Bally's), and Qadir Muhammad (Muhammad), a Bally's employee. Plaintiff alleged that Muhammad engaged in misconduct while giving her a massage at the Spa at Bally's, and she sought compensatory and punitive damages. After reviewing the record in light of the applicable law, we reverse and remand.
During voir dire on August 24, 2009, one prospective juror, who had been excused, appeared to touch plaintiff on the shoulder and whisper something in her ear as she exited the courtroom. Later, the court asked the remaining prospective jurors whether they had "any opinions about . . . emotional injuries, depression or post-traumatic stress syndrome," and one responded that his sister had "died from" depression. At sidebar, he reiterated that depression "killed [his] sister" and stated: "I got [an] opinion on it, I don't know whether it's good or bad." Nevertheless, the juror was not asked any further questions and was not excused.
Shortly thereafter, a court aide advised the judge outside the presence of the jury that: "The plaintiff just said under her breath to [that juror], I'm sorry about your sister. I read her lips." The court then asked to see counsel and Muhammad at sidebar and instructed plaintiff's counsel as follows:
I just saw [a juror] nodding his head at [plaintiff]. My court aide tells me that she appeared to say to him something like, I'm sorry about your sister. I want you to . . . ask her if she said that. And if so, I'm going to excuse that juror and you tell [plaintiff] that if there is any further attempt to communicate with these jurors I'm going to mistry the case immediately. I want to hear whether my court aide's information was accurate, she appeared to have mouthed that. And maybe it was misunderstood, but I want to know . . . .
After counsel conferred with plaintiff, the judge held another sidebar. Counsel acknowledged that plaintiff "did make some expression of sympathy" and "mouthed . . . [s]orry for your sister." Bally's moved for a mistrial, arguing that plaintiff had interacted improperly with a potential juror. The court granted the application, reasoning as follows:
There's no doubt in my mind that at least four others of the seated jurors had to have noticed [the words mouthed], and there's no doubt in my mind that at least the people who were seated in the row immediately behind plaintiff's counsel table had to notice it as well.
I'm just going to assume that it was all inadvertent, that [plaintiff's counsel] did not see it because I'm sure he would have corrected it if it occurred. There's no doubt in my mind that [the juror] was very emotional about the loss of his sister, and it's understandable that somebody might want to express their condolences for that, but it cannot be a litigant in a case when . . . the other jurors are going to sit in judgment of that case. So I grant a mistrial.
On September 25, 2009, the court denied Bally's motion for sanctions. In an accompanying memorandum, it explained: "This is not a case where an attorney's conduct was contumacious or a litigant's conduct was motivated by bad faith."
A second round of jury selection began on January 4, 2010, before a different judge. One prospective juror was excused based on her employer's business relationship with local casinos. However, before leaving the courthouse, she informed the jury manager that plaintiff had spoken to her and other prospective jurors. Outside the presence of the jury pool, the court advised counsel as follows:
I've been informed . . . by [the jury manager] that . . . the plaintiff had direct contact with [a juror] who has since been dismissed, that [the juror] related to him that she was having a conversation with [plaintiff] - not about the case but about pets and dogs - and that the conversation also included a couple of other jurors . . . . I'm also concerned . . . in light of the fact that this matter was mistried due to the plaintiff's conduct [in August 2009].
Counsel for Bally's then moved to dismiss plaintiff's complaint with prejudice, insisting that her "conduct can't be tolerated by the Court." He also claimed that a mistrial would be inadequate "for a variety of reasons," particularly because Muhammad had traveled from his home in Texas for both trial dates "at great . . . personal expense." Plaintiff's counsel responded that the allegations were "hearsay" and urged the court "to make a record" before taking any action. He also advised the court that plaintiff did not "see any badges on anybody that she spoke to" and that plaintiff was willing to "take the stand."
The court ultimately agreed with plaintiff that additional information was needed before the motion ...