JILL MEGLINO v. CAITLIN C. GAGNE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JILL MEGLINO and JOSEPH MEGLINO,

her husband,

Plaintiffs-Appellants,

v.

CAITLIN C. GAGNE,

Defendant-Respondent.

____________________________________

October 14, 2014

Submitted October 1, 2014 Decided

Before Judges Alvarez, Waugh, and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1559-11.

Shebell & Shebell, L.L.C., attorneys for appellants (Thomas F. Shebell, III, of counsel; Robert A. Morley, on the briefs).

JohnC. Prindiville,attorney for respondent.

PER CURIAM

Plaintiff Jill Meglino1 appeals the Law Division's July 1, 2013 orders entering a judgment of no cause of action on her personal injury claim against defendant Caitlin C. Gagne and denying her motion for a post-trial jury voir dire or a new trial. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

On September 27, 2010, the vehicle driven by Gagne rear-ended the vehicle driven by Meglino. According to Meglino, her head slammed into the back of her seat. She sought medical treatment at a hospital the next day because she was unable to move her head from side to side.

Meglino and her husband filed their complaint in May 2011. She alleged that she suffered personal injuries as a result of the accident caused by Gagne's negligence. Gagne denied liability and asserted that Meglino's injuries did not satisfy the verbal threshold established by the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, at N.J.S.A. 39:6A-8(a).

The case was tried by a jury over three days from June 11 to June 13, 2013. Gagne's attorney conceded liability, but continued to argue that Meglino's injuries did not satisfy the AICRA threshold. The facts that follow were developed at the trial.

Robert Sabo, M.D., examined Meglino approximately three and a half weeks after the accident. According to Sabo,2 the x-rays from the emergency room revealed a straightened cervical lordosis. Sabo's physical exam revealed a palpable spasm in the neck and trapezius with a reduced range of motion. He diagnosed Meglino with a cervical radiculopathy and a possible herniated disc, prescribed physical therapy, and ordered a cervical MRI. Meglino testified that the two months of physical therapy improved her symptoms significantly. Sabo interpreted the cervical MRI to show a small herniation at C4-C5 and a larger herniation at C5-C6. He testified that flexion extension action of the neck during an impact puts a force on the discs of the cervical spine that causes them to tear.

Sabo also diagnosed Meglino with facet joint syndrome. He testified that this damage does not appear on an MRI. Meglino continued treatment with Sabo for eleven months. During that time, she received three spinal injections. In May 2011, Meglino underwent a radiofrequency ablation. She testified that she felt better only for one to two weeks following that procedure.

In August, Meglino refused further pain medication. She also refused further surgery, fearing it would make her condition worse. Meglino testified that her symptoms remained "about the same" after the conclusion of her treatment.

Meglino testified that she experiences neck pain daily, which increases when she lifts heavy objects. She has trouble sleeping and endures long-lasting headaches. Meglino is no longer able to participate in activities she used to enjoy, including landscaping, dirt-biking, and playing with her young daughter. She also has trouble sitting in one place for extended time periods.

Meglino testified that her injury has adversely affected her relationship with her husband. Her husband and father-in-law corroborated that testimony during the trial. On cross-examination, Meglino testified that, following the accident, she went to school for medical billing and graduated in October 2011. The program required her to attend classes from 8:00 a.m. until 2:30 p.m. daily. As of the time of trial, she was working full-time at a medical group's office.

Meglino's expert, Robert C. Dennis, M.D., testified that Meglino suffers from a disc herniation at the C5-C6 level, shown by her MRI, and a facet joint injury causing radicular pain. Dennis examined Meglino on April 12, 2012. He testified that the injury was caused because of a whiplash or flexion extension motion. He opined that spinal disc injuries are permanent because they do not heal. Dennis noted the presence of fibriotic tissue in Meglino's neck. His physical exam also revealed that Meglino had an abnormal cervical spine and a loss of motion of fifty percent with muscle weakness. Dennis noted that there was no evidence of spasm or any previous injury or degeneration in Meglino.

During cross-examination, Dennis was questioned about Meglino's emergency room x-rays. Although Meglino had testified earlier that she went to the emergency room because she could not turn her head in the morning following the accident, the hospital's records reflect that she had unrestricted range of motion in her neck.

Richard Sacks, M.D., testified as the defense expert. When Sacks examined Meglino, he found no cervical spasm. Sacks' palpation revealed abnormal tenderness. His review of Meglino's MRI showed that two of her spinal discs had minimal physiologic bulging and did not show any objective evidence of an injury from an automobile accident. He conceded on cross-examination that he had not seen all of Meglino's medical records.

Following the testimony on the second day of trial, counsel and the judge held an informal charge conference, and then discussed the jury charge on the record the following morning. Both attorneys agreed to the judge's proposed charges.

With regard to Meglino's injury, the judge charged

An injury shall be considered permanent when the body part or organ or both has not healed to function normally and will not heal to function normally with further medical treatment. Plaintiff must prove this claim through objective, credible, medical evidence. Objective proof means the injury must be verified by physical examination or medical testing and cannot be based solely upon the plaintiff's subjective complaint. Credible evidence is evidence you find to be believable.

The judge also directed the jurors that, if they had a question, they should not disclose where they were in the process of their deliberations.

After the charge, a juror asked the judge whether the jury could deliberate during lunch, because the jurors were "dying to discuss the case." The judge instructed them that the case could not be discussed outside the jury room.

At approximately 2:00 p.m., the jury alerted the judge that there was a question, which read: "Is the evidence of permanent damage based on just the herniated/bulging/protruding disc?" The judge and counsel discussed the question at length. The judge proposed rereading the applicable section of the charge. Meglino's attorney suggested that the question be answered "no," meaning that the "herniated/bulging/protruding disc" was not the only "evidence of permanent damage." Defense counsel responded that he thought it should be answered "yes," meaning it was the only such evidence. There followed an unresolved discussion of whether there was, in fact, other objective evidence of permanency.

At that point, the judge again suggested that he reread the charge. Meglino's attorney told the judge that was "satisfactory." Defense counsel responded that, although his preference was for the judge to answer the question in the affirmative, he would accept the idea of rereading the charge. Then defense counsel pointed out that the question appeared to be "asking something different," that is, whether "there's something else other than what's been argued to them here today." Meglino's attorney wondered whether the jury wanted to know if they could only rely on "an MRI finding of this as opposed to the clinical examination [evidence]."

Because the question could be read in different ways, the judge suggested that

[t]here's another alternative. I can call the jury out and say we've read the question and we're not quite sure what information they're looking for. Will you please go back and reconvene and discuss the issue and maybe just send us out send out another letter clarifying exactly what you'd like.

Both counsel consented. The jury was brought back into the courtroom and the judge asked the jurors for a clarification of the question.

When the jury had not submitted a revised question for "awhile," the judge asked the attorneys whether he should bring the jurors back into the courtroom or "just leave well enough alone." Meglino's attorney responded that he "would prefer to leave them alone." Gagne's attorney responded that he "[didn't] think you can take [the jury] out of there like that." Consequently, the judge took no action.

The jurors sent out a second note advising the judge that they had "reached a verdict." The jury found that Meglino failed to prove by a preponderance of the evidence that she sustained a permanent injury as a proximate result of the accident. The verdict was unanimous, six to zero, and both attorneys waived the polling of the jury.

After the judge had read the verdict and excused the jury, the following took place

THE COURT: . . . So, thank you very much. You are Yes?

JUROR: Um.

THE COURT: I'm sorry. It really I can't ask you can't ask and I can't answer specific questions

JUROR: Okay.

THE COURT: about the case. You function as a group and only through written communication with the Court. So you are discharged from jury service.

According to Meglino, the same juror contacted her by telephone the following day and apologized for the verdict. In an affidavit in support of her post-trial motion, Meglino related the conversation as follows

8. The juror explained to [her] that everyone but the younger male juror believed that [she] suffered a permanent injury and was in pain, including the alternate juror who couldn't believe the verdict.

9. The juror further explained that the jury believed that they had to decide the whole case based upon the MRI that was marked into evidence.

10. The jury did not believe that it could render a verdict in favor of the plaintiff based upon the findings of the medical doctors that [she] had permanent spasms.

11. The juror stated that she did not understand why the jury could not factor all of the testimony and [her] complaints, other than the MRI film.

12. After the jury gave a question to the Court and received an instruction from the Court to revise their question, the jurors could not agree on the wording of a new question.

13. There was one male juror who called [her] a liar and didn't believe that [she] had suffered any injury and that [she] was just trying to get money.

14. According to the female juror the male juror discussed this belief on several occasions, including during lunchtime discussions between the jurors about the case.

Her attorney immediately advised the judge about the call, once he learned about it from his client.

On June 18, Meglino filed a motion requesting that the judge conduct a post-verdict voir dire of the jury or, in the alternative, nullify the result and grant a new trial. The judge heard oral argument on June 24. On July 1, the judge issued a thoughtful and thorough written opinion explaining his reasons for denying the motion. The implementing order and the judgment of no cause were entered the same day. This appeal followed.

II.

On appeal, Meglino argues that the trial judge erred in giving the model jury charge with respect to the AICRA verbal threshold, should not have permitted the jury to return a verdict before he had answered the jury's question, and should have spoken to the juror when she asked to speak with him following the verdict or at least after Meglino moved for a post-trial voir dire or new trial.

A.

We start our analysis with Meglino's arguments concerning the jury charge. The judge charged the jury using the language of Model Jury Charge (Civil), 5.33B(C), to which Meglino made no objection before or after the charge was delivered. She now argues that the language used was inadequate and misleading. We disagree.

"Where there is a failure to object, it may be presumed that the instructions were adequate. . . . [and] that trial counsel perceived no prejudice would result." State v. Morais, 359 N.J. Super. 123, 134-35 (App. Div.) (citation omitted), certif. denied, 177 N.J. 572 (2003). Meglino argues that the charge amounted to plain error. It is well established that plain error requires a determination that the charge, when considered as a whole, did not "adequately convey[] the law and is []likely to confuse or mislead the jury." Mogull v. CB Commer. Real Estate Grp., 162 N.J. 449, 464 (2000) (citing Fischer v. Canario, 143 N.J. 235, 254 (1996)). That was not the case here.

One way for a plaintiff to recover under the AICRA verbal threshold, N.J.S.A. 39:6A-8(a), is to prove that the automobile accident at issue caused "a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." The statute further provides that "[a]n injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment."

The model charge, which was given by the trial judge, includes the last sentence virtually verbatim. The charge's requirement that there be "objective medical evidence," which "must be verified by physical examination or medical testing and cannot be based solely upon the plaintiff's subjective complaints," also finds support in the statute. N.J.S.A. 39:6A-8(a) requires a plaintiff to provide a physician's certification that the plaintiff "has sustained an injury described above. The certification shall be based on and refer to objective clinical evidence, which may include medical testing, [within certain statutory parameters]. Such testing may not be experimental in nature or dependent entirely upon subjective patient response." We find no error or confusion in the manner in which that requirement is incorporated into the model charge, including the use of "verified" to articulate the statute's "based on" requirement.

We also reject Meglino's argument that the trial judge should have tailored the charge to outline the evidence at issue in this case. Her trial attorney made no such request and never objected to the charge being given without specific reference to the evidence, which was argued to the jury by counsel during their summations. This was a standard verbal threshold case and there was no particular reason for a tailored charge.

B.

We now turn to the issue of the jury's question. Meglino argues that the judge should not have allowed the jury to return a verdict before he had resolved the jurors' question.

The jury asked whether "the evidence of permanent damage [was] based on just the herniated/bulging/protruding disc." The trial judge proposed to reread Model Jury Charge (Civil), 5.33B(C). Meglino's attorney consented, but defense counsel thought the jury was asking a factual question about the nature of the alleged injuries, rather than a legal question. Both counsel eventually agreed with the judge's second proposal, which was to ask the jury to explain its question.

When the judge became concerned about the delay in the jury's submission of a revised question, he asked counsel whether he should "call the jurors back out or just leave well enough alone." Meglino's attorney responded first and said that he "would prefer to leave them alone." Defense counsel concurred. When the jury announced that there was a verdict, Meglino's attorney made no objection and did not request the judge to ask whether the jury still had a question before taking the verdict. Meglino now argues that the judge acted in error.

Meglino's position on this issue implicates the doctrine of invited error. The Supreme Court explained the doctrine in Brett v. Great American Recreation, Inc., 144 N.J. 479 (1996), as follows

The doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error. The rule is based on considerations of fairness and preservation of the integrity of the litigation process. "Elementary justice in reviewing the action of a trial court requires that that court should not be reversed for an error committed at the instance of a party alleging it." Bahrey v. Poniatishin, 95 N.J.L. 128, 133 (E. & A. 1920).

 
Thus, where error was advanced to secure a tactical advantage at trial, the party responsible will not be permitted to complain on appeal. "The defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial." Particularly where the parties appear to be in agreement on a difficult question of law, the trial court's reliance on the erroneous contentions of counsel is understandable, and it would be unfair to both the trial court and to the appellant's adversary to reverse. See Terminal Constr. Corp. v. Bergen Cnty. Hackensack River Sanitary Sewer Dist. Auth., 18 N.J. 294, 339 (1955); Spedick v. Murphy, 266 N.J. Super. 573, 593 (App. Div.) (holding that appellant could not object to admission of doctors' testimony where court and counsel all agreed that doctors could testify), certif. denied, 134 N.J. 567 (1993); Venuto v. Lubik Oldsmobile, Inc., 70 N.J. Super. 221, 229 (App. Div. 1961) (holding party may not raise as plain error admission of evidence where party agreed to its admission at trial). The rationale is not far removed from that underlying the doctrine of waiver, in that counsel has deprived the court of the opportunity to make a correct ruling and the adversary of the ability to meet the objection.

[Id. at 503-04 (citations omitted).]

We find the doctrine applicable here. Meglino's preference not to query the jury was quite clearly a matter of litigation tactics. The tactic carries over to her attorney's failure to object to the judge taking the verdict without asking the jury about the question. The invited error doctrine generally precludes parties from seeking a second chance when the tactic they chose at trial has failed. By following Meglino's preference, the judge did not explore whether the jury was having problems reframing the question or had decided it no longer required an answer. It would be unfair to Gagne to allow Meglino a second trial based on the bad result she now argues was caused by the judge following her own "preference." As the Court observed in Brett, the invited-error doctrine is based, in part, "on considerations of fairness." Id. at 503.

This is not, as Meglino argues, a case in which the trial judge abrogated his obligation to respond to or clarify a jury's question. See State v. Savage, 172 N.J. 374, 394 (2002) (quoting State v. Conway, 193 N.J. Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984)). Rather, it is one in which the judge followed the preferences of the party now arguing that he erred in doing so. Of course, courts do "not apply the doctrine of invited error where to do so would cause a fundamental miscarriage of justice." Brett, supra, 144 N.J. at 508. Our review of the record satisfies us that this is not such a case. There was nothing surprising about the verdict in this case, based on the proofs before the jury.

C.

Finally, we turn to Meglino's argument that the judge erred in failing to allow the juror to speak after the jury was excused and again when he denied the motion for post-trial jury voir dire or a new trial. Meglino seeks a remand for post-trial voir dire or a new trial on the basis of two events: (1) a brief exchange following the verdict in which a female juror appeared to want to say something to the judge following the return of a unanimous verdict in her presence and (2) statements made over the telephone to Meglino by a caller who did not identify herself or provide any contact information, other than to say that she was the juror who tried to speak to the judge following the verdict.

The total exchange between the judge and the juror was exceedingly brief.

THE COURT: . . . So, thank you very much. You are Yes?

JUROR: Um.

THE COURT: I'm sorry. It really I can't ask you can't ask and I can't answer specific questions

JUROR: Okay.

THE COURT: about the case. You function as a group and only through written communication with the Court. So you are discharged from jury service.

Judges are generally instructed not to have post-trial conversations with jurors. See State v. Walkings, 388 N.J. Super. 149, 158-59 (App. Div. 2006). Of course, the exchange here, unlike the one in Walkings, was not ex parte and there would have been no harm in the judge asking the juror, while still on the record, what she wished to ask. Nevertheless, we find no error in the judge's decision not to speak with the juror.

With respect to the post-trial voir dire, our courts have long recognized a privilege against disclosure of a jury's deliberations and that secrecy ensures free communication and independence in the jury room. State v. Athorn, 46 N.J. 247, 250-51, cert. denied, 384 U.S. 962, 86 S. Ct. 1589, 16 L. Ed. 2d 674 (1966); State v. LaFera, 42 N.J. 97, 106 (1964); see also State v. Harris, 181 N.J. 391, 509-10 (2004) (holding that the privilege does not violate constitutional protections), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). To protect the confidentiality of jury deliberations, our rules of procedure prohibit the parties and any attorney from interviewing jurors, "[e]xcept by leave of court granted on good cause." R. 1:16-1. "More than a mere possibility of a tainted verdict must exist to satisfy the good cause requirement." State v. Young, 181 N.J. Super. 463, 469 (App. Div. 1981), certif. denied, 91 N.J. 222 (1982); accord State v. LaRocca, 81 N.J. Super. 40, 44-45 (App. Div. 1963).

Three reasons support this strong policy against overturning jury verdicts based on the details of deliberations. First, "disappointed litigants would be encouraged to tamper with jurors, to harass them and to employ fraudulent practices in an effort to induce them to repudiate their decisions." Athorn, supra, 46 N.J. at 250. Second, the contrary policy would be tantamount to "an open invitation . . . to any disgruntled juror who might choose to destroy a verdict to which he had previously assented." Ibid. (Emphasis added). Third, the general refusal to subject jurors to interrogation over their reasons for joining the verdict seeks to foster open, honest, and vigorous deliberations. State v. Difrisco, 174 N.J. 195, 241 (2002).

In LaFera, supra, 42 N.J. at 106, Chief Justice Weintraub stated

A jury deliberates in secrecy to encourage each juror to state his thoughts, good and bad, so that they may be talked out. "Freedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world." Clark v. United States, 289 U.S. 1, 13, 53 S. Ct. 465, 469, 77 L. Ed. 993, 999 (1932).

Generally speaking, the courts have recognized two exceptions to the rule that evidence from jury deliberations will not warrant a new trial. First, if it appears that racial or religious bigotry infected deliberations, a new trial is warranted. State v. Koedatich, 112 N.J. 225, 288 (1988); Athorn, supra, 46 N.J. at 252. Second, a new trial may be granted "when a juror informs or misinforms his or her colleagues in the jury room about the facts of the case based on his personal knowledge of facts not in evidence." Koedatich, supra, 112 N.J. at 288; Athorn, supra, 46 N.J. at 251-52. Neither is alleged in this case.

"[C]alling back jurors for interrogation after they have been discharged is an extraordinary procedure which should be invoked only upon a strong showing that a litigant may have been harmed by jury misconduct." Koedatich, supra, 112 N.J. at 288 (quoting Athorn, supra, 46 N.J. at 250). The strictness with which this rule is applied is demonstrated by the facts of Athorn. There, the juror asserted several improprieties. He stated that one juror referred during deliberations to a newspaper article he had read in order to convince the other jurors of his view, that other jurors harassed him when he refused to vote guilty, that he was confused by the trial judge's instructions, and that he was tricked into voting guilty. Athorn, supra, 46 N.J. at 249-50. The Supreme Court reversed the trial judge's order calling the jurors back for questioning. In doing so, it concluded that "even if [the juror's allegations] were to be substantiated," there would not be a sufficient basis to overturn the verdict. Id. at 250. The Court reasoned that the case did not fall into one of the abovementioned exceptions, and thus offered "no reason for departing from the general rule" against inquiring about the content of jury deliberations. Id. at 252. Additionally, there was no evidence that the repudiating juror's will was overborne by improper actions on the part of the rest of the jury. Id. at 253.

We see no basis for a post-trial voir dire or a new trial in this case. After listening to the foreperson state that the verdict was unanimous, a juror attempted unsuccessfully to speak to the judge about something. She3 then contacted Meglino the next day, but was apparently unwilling to identify herself and called from a blocked number. She alleged, among other things, that (1) "everyone but the younger male juror believed that [Meglino] suffered a permanent injury and was in pain," (2) "the jury believed that they had to decide the whole case based upon the MRI that was marked into evidence," (3) "[t]he jury did not believe that it could render a verdict in favor of the plaintiff based on the findings of the medical doctors that [she] had permanent spasms," and (4) "the male juror discussed this belief on several occasions, including during lunchtime discussions between the jurors about the case."

In light of the law outlined above, those allegations do not amount to the type of "strong showing that a litigant may have been harmed by jury misconduct" required for a court to engage in the "extraordinary procedure" of a post-verdict voir dire. Athorn, supra, 46 N.J. at 250. As the Court explained in Athorn, "our courts and those of other jurisdictions have generally refused to accept from jurors, for the purpose of impeaching a verdict, any evidence of the discussion which they may have had among themselves while considering their verdict." Id. at 251. Similarly, juror discussions are not a basis for ordering a new trial. This is not a case like Barber v. ShopRite of Englewood & Associates, Inc. 406 N.J. Super. 32 (App. Div.), certif. denied, 200 N.J. 210 (2009), in which the jury foreperson, a State senator and law professor, wrote an article in which he described in detail how he had assisted the jury by explaining points of law.

D.

For all of the reasons outlined above, we affirm the orders on appeal.

Affirmed.

1 Plaintiff Joseph Meglino made a per quod claim.

2 Sabo's testimony was presented at trial through a video recording of his de bene esse deposition.

3 For the purposes of this appeal, we will assume that the same person was involved in both events.