The Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) held in its unpublished opinion filed on September 14, 2018 that the trial court mistakenly exercised its discretion by allowing a juror to serve after acknowledging a conflict of interest.
The Underlying Facts
The plaintiff underwent a total abdominal hysterectomy with bilateral salpingo-oophorectomy (“TAH/BSO”) after the defendant surgeon suspected that she had cancer and recommended a TAH/BSO. During the surgery, although the defendant surgeon observed multiple fibroids in the plaintiff’s abdomen, including a large one on the top of her uterus, he could not find any gross evidence of obvious cancer when he inspected her ovaries. Nonetheless, due to the high suspicion of ovarian cancer, the defendant surgeon was obligated to remove the organs for pathological analysis in order to get a definitive answer as to whether cancer was present because performing a biopsy would risk leaving behind microscopic cancer cells. Thus, the defendant surgeon still performed a TAH/BSO and removed the organs.
After the surgery, the defendant surgeon determined that the plaintiff did not have cancer and that the suspected mass was a cervical hydatidiform mole, or a “molar” pregnancy, which was extremely rare and could cause serious complications if untreated, particularly for patients over the age of fifty-five like the plaintiff. A pap-smear and a tissue specimen retrieved from the plaintiff and sent to the lab prior to the surgery confirmed a molar pregnancy. However, because the defendant surgeon did not request that the lab results be returned on a rush basis, the results were not received until after the surgery.
The plaintiff subsequently filed her New Jersey medical malpractice case, claiming that the defendant surgeon did not advise her of all of the risks of the procedure and that she had the option of waiting to get the lab results back that would have shown she was pregnant.
During jury selection, after the plaintiff exhausted all peremptory challenges, a prospective juror stated during voir dire that she was “hesitant” to serve as a juror “because of [her] relationship with [insurance] carriers.” The juror specified that she was an attorney and represented Princeton Insurance Company in coverage cases. Although she indicated that, based upon her experience and what she knew about the case, she thought she “could be fair,” she also stated that she would have an “allegiance” to her client, Princeton Insurance Company. During a side bar colloquy, defense counsel informed the court and plaintiff’s lawyer that defendant’s insurance carrier was, in fact Princeton Insurance Company (the court also stated during the voir dire that Princeton Insurance Company was “[a] former client of [his]”). Plaintiff’s lawyer promptly objected and challenged juror number seven for cause, stating that she had a conflict based on the “connection between her client and the defendant in this lawsuit.”
The court overruled the plaintiff’s lawyer’s objection, stating that “[c]overage issues are handled separate and apart from the other [defense related] issues,” and because there was “no coverage issue in this case,” there was “no way she could [find] out about it.”
On the second day of trial, the plaintiff’s lawyer noted on the record that a Princeton Insurance Company representative had been present in the courtroom observing the proceedings since the start of trial the day before, and later noted on the record that it appeared as if juror number seven (the attorney) had recognized the Princeton Insurance Company representative in the courtroom. Although the defense lawyer had no objection to removing juror number seven to avoid “making it an issue,” the court refused “to entertain the issue” at that juncture. Instead, the court indicated that it would have no problem with counsel stipulating to juror number seven serving as an alternate, “assuming we have additional alternates,” when “we get to the end of the case.”
On the third day of trial, juror number seven sent a note to the court, stating that she “need[ed] to speak to [the court] before the trial proceeds.” In a sidebar conference before the court and counsel, but outside the presence of the other jurors, juror number seven informed the court that she recognized the Princeton Insurance Company representative who had been in the courtroom observing the trial each day, and knew that she had a conflict of interest. The court asked whether she had discussed anything with the other jurors, and she replied “[a]bsolutely not.”
The plaintiff moved for a mistrial, arguing juror number seven “may have expressed an attitude or something else” to taint the other jurors. The court acknowledged that it “could always do a taint hearing[,]” but concluded that it was not necessary “in this particular situation[.]” The court denied the application “without prejudice[,]” noting the timing and sequence of events and concluding that the issue had not “risen to that level.” Instead, the court excused juror number seven and explained to the remaining jurors that she was “excused by the [c]ourt for various emergent reasons” that had “nothing to do with the merits of the case” but “simply had to do with other issues” and should not be “consider[ed] in any way, shape or form.”
The New Jersey medical malpractice jury returned a defense verdict, and thereafter the plaintiff filed an appeal.
New Jersey Appellate Court Opinion
The New Jersey Appellate Court agreed with the plaintiff that “even if juror number seven did not disclose to the other members of the jury her connection to the [d]efendant[,] ” the court’s “refusal to excuse her as a juror before the trial began deprived the [p]laintiffs of their right to an impartial, unprejudiced jury, requiring reversal of the jury’s verdict.”
The New Jersey Appellate Court held: “Here, we are convinced that during jury selection, the court erred in not excusing juror number seven for cause after plaintiffs’ peremptory challenges were exhausted and after the court became aware of juror number seven’s conflict of interest. Given her admitted allegiance to her client, Princeton Insurance Company, it is of no moment that, unlike the court and counsel, juror number seven was unaware of the actual conflict during the initial voir dire. We also believe the court’s voir dire of juror number seven after she became aware of the actual conflict was inadequate to determine whether questioning the other jurors was necessary. Despite juror number seven’s response that she did not discuss anything with the other jurors, the court failed to probe whether she had inadvertently imparted any information to the other jurors, but simply accepted her word that no extraneous information was imparted to the others. Without a thorough inquiry of juror number seven, the court could not properly determine whether additional voir dire was necessary to assure that impermissible tainting of the other jurors did not occur.”
Source Sengupta v. Saint Barnabas Medical Center, Docket No. A-2334-15T4.
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