MARION B. WEBER v. KISHAN K. PATEL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MARION B. WEBER,

Plaintiff-Appellant,

v.

KISHAN K. PATEL and KIRITKUMA B. PATEL,

Defendants-Respondents,

and

SELECTIVE AUTO INSURANCE COMPANY

OF NEW JERSEY,

Defendant/Intervenor-

Respondent.

_____________________________________

October 13, 2016

Argued June 6, 2016 Decided

Before Judges Lihotz, Fasciale and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8283-10.

Adam L. Rothenberg argued the cause for appellant (Levinson Axelrod, P.A., attorneys; Mr. Rothenberg, of counsel and on the brief; Matthew P. Pietrowski, on the brief).

Stephen J. Foley, Jr., argued the cause for respondents Kishan K. Patel and Kiritkuma B. Patel (Campbell, Foley, Delano & Adams, LLC, attorneys; Mr. Foley, on the brief).

Jodi F. Mindnich argued the cause for respondent Selective Auto Insurance Company of New Jersey (Zirulnik, Sherlock & DeMille, attorneys, join in the brief of respondents Patel).

PER CURIAM

This is a personal injury action, which arose out of a vehicular accident. Plaintiff Marion B. Weber appeals from a December 5, 2014 order denying her motion for a new trial, the jury having returned a verdict of no cause for action after determining she suffered no permanent injury. Plaintiff contends there are four reasons she is entitled to a new trial: the trial court failed to conduct jury voir dire as required by Administrative Directive #04-07 (Standards for Jury Selection) from the Administrative Office of the Courts, which deprived her of a fair trial; the trial court engaged in an improper ex parte communication with the jury; defense counsel improperly argued in summation plaintiff should have presented testimony from treating physicians; and the verdict was against the weight of the evidence. Finding merit in plaintiff's contention concerning the trial court's ex parte communication with the jury, we reverse and remand for a new trial.

Plaintiff commenced this action by filing a complaint in November 2010. She alleged she had been injured on April 3, 2009, in a vehicular accident caused by the negligence of defendant Kishan K. Patel, who was driving a car owned by defendant Kiritkuma B. Patel. Defendants filed an answer, and Selective Auto Insurance Company of New Jersey intervened. Defendants stipulated to liability. Following proceedings not relevant to this appeal, the parties completed discovery. The case was tried and the jury returned a verdict of no cause for action, unanimously answering "No" to this question: "Do you find that the plaintiff, Marion Weber, has proven by a preponderance of the objective credible clinical evidence that she sustained a permanent injury as a proximate result of the accident on April 3, 2009?" Plaintiff filed a motion for a new trial, which the court denied. This appeal followed.

The trial took place on non-consecutive days between October 8, 2014 and October 16, 2014. Before selecting a jury, the court discussed proposed jury voir dire with counsel, in chambers, off the record.1 Following jury selection, plaintiff testified, presented the testimony of two experts to establish the injuries she sustained in the accident, their consequences and their duration, and presented the testimony of two of her children to corroborate the consequences of her injuries. Defendants presented the testimony of the officer who investigated the accident and an expert.

Plaintiff explained the accident happened after she activated her left turn signal and stopped the van she was driving to make a left-hand turn. Her van was struck from behind by the Patel vehicle. Two of her young children were in the car. The impact pushed plaintiff's van forward and caused damage to both vehicles, as evidenced by photographs introduced into evidence. A patrolman who witnessed the accident testified at trial and confirmed plaintiff's van moved slightly forward at impact, but he described the impact as minor.

Plaintiff testified she had some pain in the back of her head and felt dazed and confused following the impact. She had difficulty producing her credentials for the patrolman. Nonetheless, she did not ask for medical attention because she believed it only to be a headache, or "a little touch of whiplash or something," which would subside if she went home and rested. Her main concern was for her children. The patrolman testified plaintiff was upset but had no difficulty answering his questions and was not injured in the accident. He confirmed she was very concerned about her children.

The accident happened on a Friday. Plaintiff's pain and symptoms worsened over the weekend and when she went to work on Monday a co-worker insisted she go to the hospital. At the hospital plaintiff complained of headaches, nausea, neck pain and shoulder pain. The medical personnel had her undergo diagnostic testing and gave her a cervical collar. Although the doctors told her to rest and take a couple days off, she returned to work.

Plaintiff developed cognitive problems, which affected her at home and at work. She began to develop memory problems, became confused and confounded rather easily, and became irritable, often becoming short-tempered with her children. During the month following the accident, on May 19, 2009, plaintiff came under the care of Dr. Kramer, an otoneurologist. Plaintiff also began seeing Dr. Isenberg, a behavioral neurologist; Dr. McCagg, a physiatrist; and Dr. Hriso, a psychiatrist, who prescribed medicine for depression. Plaintiff also saw Dr. Winell for neck and back pain.

Plaintiff recounted the course of her injuries and treatment. When she testified at the October 2014 trial, she described how she remained plagued by memory problems, struggling to remember medical and social appointments for her young children, forgetting where she placed things, and becoming confused over anything requiring numbers and computations. She still had difficulty sleeping. She had not worked since October 2009.

Plaintiff's cognitive problems had not improved during the previous year. Her neck and back symptoms troubled her occasionally, but her major problems were caused by her cognitive impairment. Her headaches persisted, she always felt as if she were being judged, and she no longer enjoyed being around people.

Two of plaintiff's children corroborated her difficulties. The younger child, a teenager, testified her mother was happy before the accident, more lively, and used to take her lots of places. Her mother no longer drives on the highway. Since the accident, her mother has become more jittery, is confused all the time, and is more reliant on her children.

The older child, now an adult, testified her mother had become much more stressed since the accident, has had constant memory lapses, and is very irritable. Her mother is easily confused and can no longer handle preparing meals for the holidays, which she previously enjoyed. During the year following her mother's accident, she noticed her mother could not fill out routine forms or remember appointments. Her mother stopped working because she was unable to perform her job. Her mother is no longer a happy person.

One of plaintiff's experts, Mary Ann Kezmarsky, Ph.D., testified as an expert in psychology and neuropsychology. Plaintiff had been referred to her by Dr. Keith Cicerone, Director for Center for Head Injuries at JFK Hospital. According to Dr. Kezmarsky, plaintiff suffered a mild traumatic brain injury in the accident. The doctor explained the brain injury was caused by a concussion that "doesn't necessarily leave any structural damage to the brain, but the brain has been stressed, for lack of a better word." She also explained the mechanics of how the injury occurs.

In addition to taking plaintiff's history and conducting a clinical interview, the doctor had plaintiff undergo a series of tests, including the Wechsler Adult Intelligence Scale-IV, Wechsler Memory Scale, California Verbal Learning Test-II, Wisconsin Card Sorting Test, Trail Making Test, TOMM, WRAT-3, and Depression and Anxiety Inventories. Based upon plaintiff's cognitive disabilities, as disclosed by the testing, Dr. Kezmarsky had plaintiff undergo cognitive rehabilitation. Although plaintiff's cognitive impairment improved somewhat, she nonetheless experienced significant changes in her life. She had to stop working because of her inability to maintain the efficiency, multitasking skills, and organization required to properly perform her job. The doctor had plaintiff undergo additional testing in January 2011, which further confirmed the doctor's opinions.

Dr. Kezmarsky concluded plaintiff's cognitive impairment, continued emotional upset, depression, and difficulty sleeping were permanent consequences of the mild traumatic brain injury caused by the automobile accident.

Plaintiff's other expert, Dr. Martin Gizzi, testified as an expert in neurology and "head injury." He evaluated plaintiff on March 9, 2012. Based upon his review of her treatment records, the history he took from plaintiff, and his examination of plaintiff, he concluded she had suffered a mild traumatic brain injury in the accident. "This resulted in a post-concussive syndrome, including headache, cognitive dysfunction, dizziness, imbalance. Secondary to that, she had depression and insomnia. . . ." The doctor also noted plaintiff had suffered a low back injury, a "lumbar-sacral strain with some nerve root features." He concluded plaintiff's brain injury and consequent symptoms are permanent.

Defendants' expert, David Masur, Ph.D., testified as an expert in neuropsychology. He does not treat patients. Rather, in his clinical practice, he conducts neuropsychological evaluations. He evaluated plaintiff on July 9, 2012. Based on his clinical interview of plaintiff, the battery of tests he had plaintiff take, and his review of her medical records, Dr. Masur's conclusion "was basically that I have this profile where we have this erratic test effort, some memory . . . problems, and I don't feel it has anything to do with residual effects of the injury of 2009."

The jury began deliberating at 2:27 p.m. on the afternoon of October 15, 2014. One and one-half hours later, at 3:59 p.m., the jury purported to return a defense verdict, four jurors voting for the verdict, two jurors voting against it. The trial judge responded: "Not a valid verdict. Five to one or six to zero. You've got to go back." The jury resumed deliberations at 4:02 p.m. The jury asked a question not at issue on appeal at 4:15 p.m., resumed deliberations at 4:16 p.m., and soon went home without reaching a verdict. According to certifications of counsel, filed in support of and in opposition to plaintiff's motion for a new trial, at approximately 4:30 p.m., the court privately met with the jury out of the presence of counsel, inquired as to whether they were "close," reported they were not, and instructed them to return the following day.

The next morning, October 16, 2014, the jury returned to resume deliberations shortly after 9:00 a.m. The court had an ex parte conversation with them. The jury returned its verdict at approximately 10:20 a.m., finding by a vote of six to zero that plaintiff had not proven by a preponderance of the credible clinical evidence that she sustained a permanent injury as a proximate result of the accident.

Plaintiff filed a motion for a new trial, which the court denied on the papers. This appeal followed.

We first address plaintiff's contention she was denied a fair trial as a result of the trial court's ex parte communication with the jury the morning they returned to resume their deliberations. We derive the relevant facts respecting this issue from the certifications of counsel concerning plaintiff's new trial motion and the trial court's written opinion denying the motion.2 Plaintiff's counsel certified

13. [The morning of October 16, 2014] the jury arrived and was put into the jury room outside of the presence of either counsel.

14. [The judge] again indicated that he met with the jurors privately outside the presence of counsel. [The judge] communicated to both counsel his conversation with the jurors.

15. According to [the judge], one of the jurors inquired as to "what happens if we remain deadlocked." [The judge] told us that he told the jurors that "I will worry about that in three days." We were not present for this conversation with the jurors.

16. [The judge] then told us, confidentially, we need not worry that he will keep them three days, he would "hang" the jury if they did not reach a verdict by the end of the day.

Defense counsel certified

19. I arrived in [c]ourt on the morning of October 16 at approximately 9:15 a.m. Plaintiff's counsel arrived shortly thereafter. Upon my arrival, I was advised by the [c]ourt's staff that the jury had returned to its deliberations at approximately 9:11 a.m. I advised plaintiff's counsel of same upon his arrival. Thereafter, the [c]ourt privately advised me that upon the jury's return, a juror had commented that no one was changing his or her mind and suggested that the jury could be deadlocked. The [c]ourt indicated to me that it had advised the jury that it was too soon to consider a "deadlock" and that consideration of same might be more appropriate following three days of deliberations. The [c]ourt, however, advised me that if the jury declared itself unable to reach a verdict at the end of the day (i.e. October 16), it would likely find the jury "hung" and declare a mistrial. The [c]ourt, therefore, suggested that I inquire of the defendant's insurer whether it wished to negotiate further with plaintiff. The [c]ourt also indicated that it intended to advise plaintiff's counsel of its communication with the jury. Thereafter, I had a conversation with defendant's insurer concerning its settlement position and subsequently discussed same with plaintiff's counsel. During that subsequent discussion, counsel advised me that the [c]ourt had reported its communication with the jury to him. At no time prior to the return of the jury's verdict did counsel object to the [c]ourt's communication with the jury or request that any further instruction be given. The jury returned its verdict at approximately 10:20 a.m.

The court explained in its written decision

I also find [plaintiff's counsel's] argument regarding the allegedly improper ex parte communications with the jurors to be meritless. Aside from being inaccurate in substance and contextually misleading, the argument also falls short of establishing any reversible error. I am unconvinced by advising the jurors that a 5-1 or 6-0 verdict was required under the law and that a deadlock would not be declared at that early stage in deliberations, there ensued an "improper intrusion into the deliberations of a jury." In fact, [plaintiff's counsel] cites case law that deems appropriate the exact conduct that he seeks to use as support for this motion. (When jurors first report an impasse, it is appropriate for the trial judge to advise them to continue deliberations. State v. Nelson, 304 N.J. Super. 561, 565 (App. Div. 1997). [Plaintiff's counsel's] proposition that my clarification of the court's procedural rules for reaching a verdict somehow coerced the jury to reach the verdict that they did fails as grounds for grant of a new trial. Not only is doing so my duty, but also there is no rational indication that the way in which I carried out that duty had any impermissible effect on the jury.

We begin by reiterating our Supreme Court's unequivocal declaration that "[e]x parte discussions between the trial court and jurors are inappropriate and improper, both during trial and after the jury is discharged." Davis v. Husain, 220 N.J. 270, 280 (2014); State v. Morgan, 217 N.J. 1, 11 (2013) ("Ex parte communications between a trial judge and a jury are improper and must be avoided. There is no place for them in the trial process."). In addition, the Supreme Court has cautioned that "judges must be especially careful about their own contacts with the jury and should not interact with jurors outside the presence of counsel." Morgan, supra, 217 N.J. at 11; see also State v. Basit, 378 N.J. Super. 125, 131 (App. Div. 2005) (stating "a judge must scrupulously avoid engaging in his own ex parte and unrecorded communications with the jury" and that the "appellate courts of this State have repeatedly and clearly condemned judges' ex parte communications with deliberating juries").

Nonetheless, not every ex parte communication between a trial judge and the jury requires a new trial. Generally,

(1) if the record affirmatively reveals that the defendant was prejudiced, reversal is required; (2) if the record does not show whether the ex parte contact was prejudicial, prejudice is presumed; and (3) if the record affirmatively discloses "that the communication had no tendency to influence the verdict," the outcome should not be disturbed.

[Davis, supra, 220 N.J. at 281-82 (quoting Morgan, supra, 217 N.J. at 12).]

Here, even if the record is deemed not to affirmatively reveal plaintiff was prejudiced, it certainly does not demonstrate the trial court's ex parte communication had no tendency to influence the verdict. To the contrary, the record discloses the jury had not reached a verdict when it was dismissed following the first day of deliberations. The certifications of counsel establish that the jury remained deadlocked the following morning, and one of the certifications suggests a juror commented to the judge that "no one was changing his or her mind and suggested that the jury could be deadlocked." In its opinion, the trial court does not deny these assertions, nor does it explain why it would have suggested to the jury it would consider a deadlock after the jury had deliberated for three days. Within approximately one hour of the court's statement, the jury announced its unanimous verdict. Prejudice is presumed. The verdict cannot stand.

Defendants suggest plaintiff waived her challenge by not making a proper objection at trial and waiting until she filed her new trial motion to make a record. We are not persuaded because we find plain error in the judge's ex parte communication with the jury. R. 2:10-2.

In view of our disposition of this issue, we need not address plaintiff's remaining arguments. We add only these comments concerning a trial court's compliance with Administrative Directives #21-06 and #4-07. We stated in Gonzalez v. Silver, 407 N.J. Super. 576, 598 (App. Div. 2009): "Although we venture no opinion as to whether the trial court's deviation from the strict requirements of these Directives constituted reversible error, we nonetheless caution that on retrial, jury voir dire conform to the dictates of the Directives, which are unquestionably binding on all trial courts." On retrial, the trial court shall conform to the dictates of the directives.

Reversed and remanded. We do not retain jurisdiction.

1 Rule 1:2-1 mandates that "[a]ll trials, hearings of motions and other applications, pretrial conferences, . . . and appeals . . . be conducted in open court[.]" Rule 1:8-3(f) directs that "[p]rior to the examination of the prospective jurors, the court shall hold a conference on the record to determine the areas of inquiry during voir dire. . . . The judge shall rule on the record on the proposed voir dire questions and on any requested attorney participation.

2 The trial court's violation of the Rules of Court prevent us from reviewing the issue on a verbatim record. See n.1, supra.