L.S. v. JONATHAN FELLUS, M.D.

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5520-14T3

L.S.,

Plaintiff-Respondent,

JONATHAN FELLUS, M.D.,

Defendant-Appellant,

and

KESSLER INSTITUTE FOR
REHABILITATION, INC. and
KESSLER PROFESSIONAL SERVICES,
LLC,

Defendants.
___________________________________

Argued September 13, 2016 – Decided November 3, 2017

Before Judges Fisher, Ostrer and Vernoia.

On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Docket No.
L-7684-10.

Evan L. Goldman argued the cause for appellant
(Goldman, Davis & Gutfleish, PC, attorneys;
Mr. Goldman, on the briefs).

Dennis M. Donnelly argued the cause for
respondent (The Donnelly Law Firm, LLC,
attorneys; Mr. Donnelly, on the brief).
The opinion of the court was delivered by

OSTRER, J.A.D.

Plaintiff (whom we identify by initials to protect her

privacy) sued Jonathan Fellus, M.D., her former physician and

neuro-rehabilitation specialist, for mental health injuries he

caused when he engaged in a sexual relationship with her while

treating her for a brain injury. At trial, plaintiff claimed —

in what defendant asserted was a delusion — that he began stalking

and tormenting her three years after he terminated both the sexual

and professional relationships. To challenge the truth of

plaintiff's allegation, defense counsel asked plaintiff to

speculate about what prompted defendant to stalk her after so much

time passed. Plaintiff answered, "I refused an offer for $750,000

. . . ."

Defense counsel swiftly objected and sought a mistrial. The

trial judge sustained the objection, but denied the mistrial

request, concluding that his curative instructions prevented any

prejudice. After the jury returned a verdict of $1.5 million in

compensatory damages, and $1.7 million in punitive damages,

defendant again argued, this time in support of a new trial motion,

that mentioning the alleged settlement offer deprived him of a

fair trial. The judge disagreed, concluding he delivered

2 A-5520-14T3
appropriate curative instructions, which the jury perforce

followed.

In deciding whether the trial court mistakenly exercised its

discretion in denying a mistrial and new trial motion, we must

consider the efficacy of a curative instruction when a jury hears

evidence of an alleged settlement offer, which, as it happens,

defendant never even made. Under the totality of the

circumstances, we conclude the court's instruction sufficed, the

court's determination to deny a mistrial or a new trial is worthy

of our deference, and reversal is not required to avoid a manifest

injustice. We also reject defendant's other challenges to the

judgment, except we are constrained to remand for further findings

regarding the punitive damage award.

Defendant admitted he engaged in a sexual relationship with

plaintiff, then thirty-three years old, who sought his treatment

following an automobile accident. He also admitted the

relationship violated his professional and legal duties. Thus,

liability was not at issue in the bifurcated trial of compensatory

and then punitive damages.

The sexual relationship spanned several months. It started

with petting in an examination room at the hospital where defendant

was a department head; and progressed to sexual intercourse at his

3 A-5520-14T3
home and a Newark hotel. Shortly after defendant told plaintiff

he was breaking it off, she learned she was pregnant. Defendant

successfully persuaded plaintiff to terminate her pregnancy. And

he paid for the abortion. Despondent thereafter, plaintiff

evidenced suicidal ideation, leading to her brief commitment to a

mental health hospital. Upon her release, she returned to

defendant as her treating physician. During that post-

hospitalization visit, she performed oral sex on him. That was

her last visit with defendant.

In various ways, the jury could find that defendant made this

obviously bad conduct worse. There was sufficient evidence for

the jury to conclude he exploited a susceptible patient; pushed

aside impediments to the sexual relations; continued despite signs

he was harming plaintiff; and took actions that served his own

self-interest rather than his patient's.

Plaintiff was no ordinary patient. As defendant determined,

she had an apparent mild traumatic brain injury, plus various

related ailments and conditions, including elements of post-

traumatic stress disorder, and seizure-like activity. That made

her vulnerable to abuse, and susceptible to harm.1 Physicians

1
In an apparent effort to blunt plaintiff's damage claim, the
defense elicited evidence of plaintiff's behavioral problems
before she sought treatment from defendant. That was obviously a
double-edged sword, as the jury may have concluded that plaintiff's
4 A-5520-14T3
like defendant, who provide psychotherapeutic treatment, are

subject to heightened restrictions on sexual relationships with

patients, which are nonetheless banned for all physicians. See

N.J.A.C. 13:35-6.3. Despite all that, defendant engaged in sexual

contacts with plaintiff.

After defendant's physical advances at the first office

visit, plaintiff appeared with her mother at the next visit. Yet,

defendant was able to exclude the mother from the examining room,

enabling him to continue his inappropriate physical contacts. A

couple days following that visit, plaintiff had a seizure-like

episode. Nonetheless, defendant persisted in his behavior at a

third office visit, after which plaintiff had another seizure-like

episode. The hospital eventually terminated her treatment because

she was a fall risk.

Before engaging in sexual intercourse with plaintiff at

defendant's house, plaintiff said she felt he commanded her to

drink wine. Defendant knew it was contraindicated for the

prescription drugs she was taking. When she became pregnant,

plaintiff said he insisted she have an abortion, stating it would

ruin his career, and threatened that he would "not be there" for

pre-existing condition made her more vulnerable, and defendant's
actions more reprehensible, than they otherwise would have been.
5 A-5520-14T3
her. He did not accompany her to the termination. Nor did he

tell her to get counseling in its aftermath.

Plaintiff was despondent and continued seeing a psychologist

— in fact the one who referred her to defendant in the first place.

The psychologist concluded plaintiff was not a danger to herself.

However, he was unaware of the abortion. During the days after

it, the psychologist conferred with defendant, but he did not

disclose it. Thereafter, plaintiff locked herself in her room

with her father's firearms. Her hospital commitment followed.

Plaintiff believed that defendant interfered with her

treatment by physicians she saw after her last visit with him.

Although defendant denied he contacted plaintiff's doctors after

she stopped seeing him, he was confronted with emails he exchanged

with a physician plaintiff saw at New York University soon after

his treatment of plaintiff ended. Plaintiff stopped seeing that

physician because she believed defendant was interfering with her

treatment. Defendant also contacted plaintiff's referring

psychologist after plaintiff's last visit, but never revealed to

him that he had a sexual relationship with plaintiff. Plaintiff

testified that she was getting some help with her seizures from

her current physician, but had not disclosed her relationship with

defendant, out of fear that it would affect the physician's

treatment.

6 A-5520-14T3
About a year-and-a-half after the end of their relationship,

plaintiff sued defendant and the hospital where he treated her.

Defendant initially denied the allegations of a sexual

relationship, and did so to the hospital as well. After the

hospital fired him, he found a job at another hospital, without

disclosing the details of his relationship with plaintiff. That

second hospital ultimately terminated defendant. About five-and-

a-half years after his last sexual encounter with plaintiff, the

New Jersey Board of Medical Examiners revoked his license to

practice medicine.

Thus, the jury could conclude that despite the apparent

reverberations of his sexual relations with plaintiff, defendant

made silence and preserving his professional and marital

relationships more important than disclosing the affair and

securing help for plaintiff. Although defendant readily admitted

at trial that he violated his professional responsibility, he

denied he was a predator and claimed he "fell for" plaintiff. Yet,

even the cold trial record of his testimony reflects an apparent

effort to shift some blame to plaintiff for the sexual

relationship, and to minimize his responsibility for events that

followed. That apparently did not sit well with the jury.

In his opening statement in the compensatory damage phase,

defense counsel conceded that defendant's actions caused plaintiff

7 A-5520-14T3
harm, and suggested that the issue at trial was how much. However,

in closing, the defense seemed to argue that plaintiff had failed

to prove she was entitled to any compensatory damages.

Experts from the two sides disagreed about the behavioral

health consequences of defendant's actions. Peter C. Badgio,

Ph.D., a psychologist, and Peter M. Crain, M.D., a neurologist,

testified for plaintiff. Three years after treatment with

defendant ended, and four years after the auto accident, Dr. Badgio

opined that plaintiff suffered from a "conversion disorder,"

meaning her psychological issues were converted into a physical

complaint, specifically, seizures. Dr. Badgio testified that

plaintiff had issues with judgment and impulsivity. He concurred

in defendant's diagnosis, reported in his medical records, that

plaintiff suffered from brain damage. Dr. Badgio testified

plaintiff was not able to act in her best interests, or handle the

relationship with defendant. He opined that defendant's actions

had a "devastating" impact on plaintiff.

Dr. Badgio found that plaintiff had major depression, which

was concealed by her conversion disorder, but was a "direct result

of [plaintiff's] experiences with [defendant] and [their]

consequences." Dr. Badgio concluded that plaintiff's conversion

disorder started before she began seeing defendant, but persisted

because of defendant; and the chances of it improving were

8 A-5520-14T3
"guarded" because of plaintiff's mistrust of medical professionals

due to defendant's actions.

Dr. Badgio saw plaintiff a second time three years later, and

found the emotional problems she suffered as a result of her

interaction with defendant had worsened. Plaintiff was no longer

suppressing her depression with physical symptoms, and her

symptoms were manifesting into paranoia. Dr. Badgio stated that

the paranoia made it hard for plaintiff to seek help and get

better. Although anti-psychotic medication might assist her in

entering a positive therapeutic relationship, Dr. Badgio thought

the chances were "very slim." Dr. Badgio also believed defendant

contributed to the severity and persistence of plaintiff's

seizures, and was the cause of plaintiff's "downhill trajectory."

Dr. Badgio concluded that plaintiff's delusions were a result of

her post-traumatic experiences with defendant.

Dr. Crain first examined plaintiff four years after the end

of defendant's treatment. He concluded in a report that "[a]s a

result of a sexual affair with [defendant] while under his care,

a resulting pregnancy, followed by an abortion — and the breakup

of their complicated relationship," he diagnosed plaintiff with

"exacerbation of emotional dysregulation of a traumatic brain

injury" and "adjustment disorder with depressed mood." Although

9 A-5520-14T3
Dr. Crain initially believed these conditions were "permanent in

nature," he later testified he was wrong about that.

When Dr. Crain examined plaintiff a second time two years

later, he diagnosed plaintiff with delusional disorder of a

persecutory or paranoid nature. As a result, plaintiff would not

"consider treatment with" medical professionals because of her

delusion that defendant would influence any doctor she saw. Dr.

Crain testified that plaintiff's delusions magnified after she

filed a claim with the Board of Medical Examiners. Dr. Crain

concluded that plaintiff no longer suffered from the seizures she

experienced as a result of the car accident, but that she suffered

from a delusional disorder, which was "psychosis." He testified

that medication could "substantially reduce" plaintiff's

delusions, but that she had not been prescribed any medication

because she refused to see a psychiatrist due to her distrust of

mental health professionals that was caused by defendant. Dr.

Crain testified that this second diagnosed condition was permanent

and caused solely by defendant.

Defense expert Barry Rosenfeld, Ph.D., a forensic

psychologist, examined plaintiff over five years after the

relationship between plaintiff and defendant ended. Dr. Rosenfeld

found that plaintiff did not exhibit any signs of deliberately

fabricating her symptoms in an attempt to punish defendant or

10 A-5520-14T3
bolster her litigation. Unlike plaintiff's experts, he found no

evidence of a delusional disorder. He concluded plaintiff had

psychosomatic symptoms, suggesting conversion of psychological

symptoms into medical symptoms. He explained that plaintiff

"genuinely believes she has a seizure disorder" that is "not

physical in nature" but is "psychological in nature." Dr.

Rosenfeld did not see any evidence to suggest that plaintiff's

conversion disorder was related to her interactions with

defendant, because the symptoms began before she met defendant,

and they did not noticeably worsen until years after plaintiff and

defendant ended their relationship.

As noted, the jury awarded plaintiff $1.5 million in

compensatory damages. Defendant was the sole witness in the

punitive damages phase, which resulted in a $1.7 million award.

Defendant raises the following points on appeal:

POINT I

DURING CROSS EXAMINATION, PLAINTIFF STATED
WHEN ASKED A QUESTION AS TO WHY SHE WAITED SO
LONG TO REPORT CERTAIN BEHAVIOR TO THE POLICE,
"I REFUSED AN OFFER FOR $750,000.00."
ALTHOUGH A CURATIVE INSTRUCTION WAS GIVEN,
THIS WAS CAUSE FOR AN IMMEDIATE MISTRIAL WHICH
WAS REQUESTED AND THE COMMENT MADE BY
PLAINTIFF (INACCURATE AS IT WAS) HAD THE
EFFECT OF TAINTING THE TRIAL, WHICH RESULTED
IN A COMPENSATORY VERDICT IN THE AMOUNT OF
$1,500,000.

11 A-5520-14T3
POINT II

THE AWARDS OF $1,500,000 FOR COMPENSATORY
DAMAGES AND $1,700,000 FOR PUNITIVE DAMAGES
WERE SO EXCESSIVE AND NOT BASED UPON ANY
REASONABLY RELIABLE EVIDENCE. FOR THIS
REASON, THE TOTAL VERDICT SHOCKS THE
CONSCIENCE AND A NEW TRIAL MUST BE ORDERED ON
ALL ISSUES.

A. Under The Law Regarding Punitive Damages,
It Is Clear That The Verdict Of
$1,700,000 Was Excessive Based Upon The
Factors That The Jury Should Consider
When Determining The Amount Of The Award.

POINT III

PERMANENCY WAS NOT IN THE CASE. NO DOCTOR
TESTIFIED AS TO PERMANENCY, AND THE CLOSEST
THAT ANY DOCTOR CAME WAS WHEN DR. CRAIN STATED
THAT THE PLAINTIFF'S PROGNOSIS WAS POOR. NO
FURTHER EXPLANATION WAS GIVEN. PLAINTIFF'S
COUNSEL DID NOT ARGUE PERMANENCY IN HIS
SUMMATION. YET THE COURT CHARGED THE JURY
WITH A PERMANENCY CHARGE, ALLOWING THEM TO
DECIDE HOW LONG INTO THE FUTURE THE INJURIES
ARE REASONABLY LIKELY TO LAST. EVEN THOUGH
THIS WAS NOT OBJECTED TO BY COUNSEL AT THE
TIME, THIS WAS PLAIN ERROR AND THEREFORE
REVERSIBLE.

POINT IV

DURING HIS OPENING STATEMENT TO THE JURY IN
THE PUNITIVE DAMAGE PHASE OF THE TRIAL,
PLAINTIFF'S COUNSEL ARGUED THAT BY ITS VERDICT
THE JURY SHOULD "SEND A MESSAGE TO DOCTORS"
THAT THIS TYPE OF BEHAVIOR SHOULD NOT BE
PERMITTED. THIS STATEMENT WAS IMMEDIATELY
OBJECTED TO BY COUNSEL AND AFTER IT WAS
SUSTAINED PLAINTIFF'S COUNSEL MODIFIED HIS
STATEMENT TO "SENDING A MESSAGE TO DR.
FELLUS." "SENDING A MESSAGE" IS CLEARLY AN
IMPERMISSIBLE STATEMENT AND WARRANTS A NEW
TRIAL.
12 A-5520-14T3
POINT V

PRIOR TO ENTERING A JUDGMENT ON THE ISSUE OF
PUNITIVE DAMAGES, THE COURT WAS REQUIRED TO
DETERMINE THE "REASONABLENESS" OF THE AWARD.
AS THE COURT DID NOT DO THIS, DESPITE A REQUEST
TO DO SO, THERE MUST BE A NEW TRIAL ON THE
ISSUE OF PUNITIVE DAMAGES.

II.

The only issue worthy of extended discussion is defendant's

argument that plaintiff's disclosure of an alleged settlement

offer caused irremediable prejudice. As noted above, plaintiff's

experts testified that she had begun to suffer from paranoia and

delusions. They also testified that defendant caused this

condition, by engaging in the sexual relationship, and ending it

the way he did. Plaintiff did not recognize her perceptions as

delusions. She testified that she began to perceive that defendant

was stalking her beginning in 2011 or 2012. She claimed he was

responsible for hacking her computer; stalking her; sending people

to her gym to mock her, or intimidate her by striking poses that

would remind her of defendant.

During cross-examination, defense counsel asked a series of

open-ended questions, culminating with:

Q Okay. So, do you know what prompted
[the stalking] four years ago as opposed to
why it didn't start six years ago?

A. I refused an offer for $750,000 –
13 A-5520-14T3
[DEFENSE ATTORNEY]: Objection, Your
Honor, objection. Can we approach sidebar,
please?

THE COURT: Yes. Excuse us.

After an unrecorded sidebar, at which defense requested, and

the court denied, a mistrial, the judge gave a curative

instruction. Although the court sustained defendant's objections,

the court did not expressly instruct the jury to disregard

plaintiff's statement, nor limit its use in any way. Rather,

apparently unintentionally, the judge instructed the jury that

what plaintiff said from the witness stand was admissible, but the

issue plaintiff raised would not be pursued further. He stated:

THE COURT: All right, the objection is
sustained. That's an area that will not be
further delved into. Keep in mind, ladies and
gentlemen, and I'll tell you this — I told you
this before and I'll tell you again. What
lawyers say and in the course of their asking
a question, when they say something, merely
because they say it doesn't make it so. They
are not testifying. What they offer is not
evidence. What is evidence is what comes from
the witness stand as a result of any question
that they might ask or as a result of any –
any evidence. Keep — documentary evidence
that I may allow into evidence, okay. If
there's a question being asked of the witness
and I don't overrule the question before the
question is asked, because I don't know what
the question is, or before the answer is made,
then you'll get to hear the answer to the
question. Please continue.

[(Emphasis added).]

14 A-5520-14T3
The cross-examination continued briefly and the court recessed for

the day.

The next morning, defense counsel renewed his request for a

mistrial, which the court denied. Plaintiff's counsel expressed

reservations about any curative instruction, because it would

reinforce the prejudice of plaintiff's remark. However, the judge

expressed his confidence in the jury's ability to follow

instructions. The judge's curative instruction corrected his

statement made the previous afternoon, and expressly directed the

jury to disregard any and all testimony about settlement offers —

apparently referring not only to plaintiff's most recent

allegation, but also to the prior testimony from defendant.

Defendant had admitted he asked the Board of Medical Examiners to

let him keep his license so he would be in a position to compensate

plaintiff. He also testified, without objection, that after he

was sued, he was unsure how the case would be resolved, and whether

he would have insurance. He stated he thought the case might be

susceptible to a cash settlement.

The judge explained that courts encourage settlement, because

it serves parties' interests and spares juries the burden of

service. Yet, settlement discussions should have no impact on

determining a party's liability to pay damages to another. We

quote the curative instruction at length:

15 A-5520-14T3
THE COURT: One thing I have to do before
we resume testimony. During the course of the
testimony, you heard, a couple of times, you
— you may or — may or may not have heard a
couple of times, I know I did more than once
here, some testimony from witnesses with
regard to the ability or lack thereof to
resolve this case short of a jury verdict.
Well, what we call settlement.

Now, I'm sure you all recognize the fact
that a settlement is a way of life in the
litigation area. It's just to — it's in the
parties' best interests and the courts
encourage the ability of parties to be able
to resolve a case without — by settlement
without the necessity of having a trial and
having — inconveniencing you all and — but,
the ability to do that and the ability to have
a trial is really the fundamental part of our
system. When — while we encourage resolution
short of a trial, we — we understand, as a
matter of law, that that is — that that occurs
and yet, at the same time, we also understand
that the fact of it occurring has absolutely
nothing to do with the determination as to
whether or not there is a legitimate cause of
action. In other words, a liability on the
part of a defendant, any given defendant, to
pay damages to any given plaintiff.

The fact that there's — there is ever any
discussion with regard to resolution is not
something that we can properly take into
consideration in determining the issues that
a jury and a judge has to determine. It plays
no part and it cannot and should not play any
part in a jury's consideration or a judge's
consideration, for that matter.

So as a result, no one is permitted to
talk about — I think I mentioned many times
that — to keep in mind that — that what lawyers
tell you is not evidence. What is evidence
is what comes from the witness stand. But
what I probably failed to tell you, and I'm
16 A-5520-14T3
telling you now, is that sometimes, you hear
statements from the witness stand that has no
business being considered as a matter of law
by you or me. Those kinds of things — an
example of that that we have heard here is any
comments with regard to settlement in — of
this case. It obviously has not been settled.

And so here we are. And we can't take
into any consideration whether or not there
has been any settlement discussions, any
resolution or lack thereof, and what — what
was the cause of it, what was the — the
parameters in which it was — none of that is
an — is our business. Our business is to
reach a conclusion based upon the evidence
that's presented and my instructions as to the
law and nothing short or — nothing short of
that and nothing greater than that. Which is
one of the reasons why I tell you not to
discuss the case among yourselves, certainly
not with anyone else, not to look up anything
on the internet because it's only what you
hear here in the courtroom.

Now, sometimes you'll hear things in the
courtroom that you're not supposed to take
into consideration. And it's my job to tell
you not to take that into consideration. And
that's what I'm telling you now. To the degree
to which you heard anything with regard to
resolution of this case by anyone in any
manner in any degree or anything about it, you
may not consider that in the course of your
deliberations.

And what I even ask you to do — I'm going
to go to the extent right now to ask you to —
since in this case, you're allowed to take
notes, to take a minute. You may remember and
may not actually have to do it. But to the
degree to you don't remember or just to be
sure, take a minute now and review your notes
and see — and make sure that if you did say
anything in your notes or write anything in
your notes with regard to any settlement
17 A-5520-14T3
conversations that anybody had with regard to
the testimony, cross it out. Okay? Take that
time now. Nobody feels the need to do that?
If you do, take a minute right now.

In support of a new trial motion, defense counsel again argued

that plaintiff's reference to an alleged settlement offer was

prejudicial. He contended that the jury must have relied on the

alleged $750,000 offer, because it awarded precisely twice that

amount in compensatory damages. He also argued that the alleged

offer tainted the punitive damage award by leading the jury to

believe that defendant was able to pay at least a $750,000 award,

even though his financial statement indicated a total net worth

of slightly less than that amount.

The court denied the new trial motion. The judge found that

"defendant's outrageous behavior" as presented "throughout the

trial" "clearly justified" the award. Thus, defendant failed to

demonstrate, under Rule 4:49-1, "clearly and convincingly . . . a

miscarriage of justice under the law." The court found that the

quantum of damage did not shock the conscience, citing He v.

Miller,
207 N.J. 230 (2011).

With regard to plaintiff's reference to an alleged settlement

offer, the judge noted that "trials are messy things," and

plaintiff's statement "arose out of defense counsel's repeated use

of open ended questions in cross examination." The court surmised

that none of the jurors even recorded plaintiff's remarks in their
18 A-5520-14T3
notebooks, because he observed that they did not react when he

directed the jury to cross out any notes of plaintiff's remarks.

The judge found that its curative instruction sufficed to remediate

any prejudice:

The Court immediately and effectively
addressed the comment directing the jury to
disregard the improper reference and did so
without unduly bringing attention to the
content. I'm satisfied the problem was
adequately addressed.

. . . .

This jury paid careful attention to the
Court's charge as well as its instructions
throughout the trial, including any curative
instructions.

On appeal, defendant renews his argument that the judge's

instruction was ineffective. He contends that plaintiff's

disclosure was too prejudicial to be curable. Plaintiff disagrees,

contending that we should defer to the trial judge's feel of the

case, his assessment of the impact of the testimony, and the

effectiveness of his instruction.

We consider first our standard of review of a trial judge's

denial of a mistrial and a motion for a new trial. The Court in

State v. Winter,
96 N.J. 640, 646-47 (1984) addressed the specific

issue posed here — "[t]he decision on whether inadmissible evidence

19 A-5520-14T3
is of such a nature as to be susceptible of being cured by a

cautionary or limiting instruction, or instead requires the more

severe response of a mistrial . . . ." The Court held the decision

"is one that is peculiarly within the competence of the trial

judge, who has the feel of the case and is best equipped to gauge

the effect of a prejudicial comment on the jury in the overall

setting." Id. at 647. Consequently, "[a] motion for a mistrial

is addressed to the sound discretion of the [trial] court; and the

denial of the motion is reviewable only for an abuse of

discretion." Ibid. (quoting State v. Witte,
13 N.J. 598, 611

(1953)); see also State v. Harvey,
151 N.J. 117, 205 (1997)

(stating an appellate court must find "an abuse of discretion that

results in a manifest injustice" to overturn a trial court's

mistrial ruling). The same deferential standard that applies to

the mistrial-or-no-mistrial decision, applies to review of the

curative instruction itself. Winter, supra,
96 N.J. at 647.

Although we apply the same standard to a new trial motion

that the trial court does — whether it "clearly and convincingly

appears that there was a miscarriage of justice under the law,"

R. 4:49-1(a) — we do not write on a clean slate. Here, too, we

"must afford 'due deference' to the trial court's 'feel of the

case,' with regard to the assessment of intangibles, such as

witness credibility." Jastram v. Kruse,
197 N.J. 216, 230 (2008)

20 A-5520-14T3
(quoting Feldman v. Lederle Labs.,
97 N.J. 429, 463 (1984)). "[I]t

is the trial judge who sees and hears the witnesses and attorneys,

and who has a first-hand opportunity to assess their believability

and their effect on the jury." Ibid.

In particular, a trial court is in the best position to assess

the impact of an evidentiary ruling. In Crawn v. Campo,
136 N.J.
494, 512 (1994), the trial court held, in the midst of trial, that

the plaintiff's counsel's improper comment did not warrant a

mistrial, but, at the end of trial, the trial court concluded that

its ruling, in conjunction with other erroneous rulings, warranted

a new trial. Based on the trial court's ability to assess the

witnesses' credibility, the Supreme Court held, "Deference should

be accorded to the trial court's conclusion concerning the

prejudice attributable to the" trial court's rulings and "the

extent to which that prejudice contributed to an unjust result."

Ibid.

We recognize the tension in our case law governing curative

and limiting instructions. The authority is legion that courts

presume juries follow instructions. See e.g., State v. Loftin,

146 N.J. 295, 390 (1996) ("That the jury will follow the

instructions given is presumed."). The presumption is founded in

part on necessity. "[T]he courts must rely upon the jurors'

21 A-5520-14T3
ability and willingness to follow the limiting instruction without

cavil or question." State v. Manley,
54 N.J. 259, 270 (1969).

The presumption is "[o]ne of the foundations of our jury system

. . . ." State v. Burns,
192 N.J. 312, 335 (2007).

Yet, some view the presumption as a myth. "The naïve

assumption that prejudicial effects can be overcome by

instructions to the jury . . . all practicing lawyers know to be

unmitigated fiction." State v. Boone,
66 N.J. 38, 48 (1974)

(quoting Krulewitch v. United States,
336 U.S. 440, 453,
69 S. Ct.
716, 723,
93 L. Ed. 790, 799 (1949) (Jackson, J., concurring)).

Noting, if not adopting that skeptical view, our Supreme Court has

found, "There are undoubtedly situations in which notwithstanding

the most exemplary charge, a juror will find it impossible to

disregard such a prejudicial statement." Ibid. In Boone, for

example, the Court found that the admission of the defendant's

prior but withdrawn guilty plea presented such a situation.
66 N.J. at 50.

The United States Supreme Court reached the same conclusion

regarding the admission of a co-conspirator's confession that

implicates a defendant. "[T]here are some contexts in which the

risk that the jury will not, or cannot, follow instructions is so

great, and the consequences of failure so vital to the defendant,

that the practical and human limitations of the jury system cannot

22 A-5520-14T3
be ignored." Bruton v. United States,
391 U.S. 123, 135,
88 S.

Ct. 1620, 1627,
20 L. Ed. 2d 476, 485 (1968).

Without delving into the numerous empirical studies on jury

behavior, we are satisfied that jury compliance is neither truth

nor fiction. It is somewhere in between. As one scholar has

noted, "The reality is . . . that evidentiary instructions probably

do work, but imperfectly, and better under some conditions than

others . . . ." David A. Sklansky, Evidentiary Instructions and

the Jury as Other,
65 Stan. L. Rev. 407, 409 (2013) (Evidentiary

Instructions) (reviewing jury behavior research); see also id. at

423-39 (analyzing various empirical studies).

The decision to opt for a curative or limiting instruction,

instead of a mistrial or new trial, depends on at least three

factors. First, a court considers the nature of the evidence and

how toxic it really is. "The adequacy of a curative instruction

necessarily focuses on the capacity of the offending evidence to

lead to a verdict that could not otherwise be justly reached."

Winter, supra,
96 N.J. at 647. Evidence that bears directly on

the ultimate issue before the jury may be less susceptible to

curative or limiting instructions than evidence that is indirect,

and requires additional linkages.

For example, distinguishing between a co-conspirator's

confession that directly implicates a defendant, and a confession

23 A-5520-14T3
that only inferentially does so, the United States Supreme Court

noted that "[s]pecific testimony that 'the defendant helped me

commit the crime' is more vivid than inferential incrimination,

and hence more difficult to thrust out of mind." Richardson v.

Marsh,
481 U.S. 200, 208,
107 S. Ct. 1702, 1708,
95 L. Ed. 2d 176,

186 (1987). Consequently, "with regard to inferential

incrimination, the judge's instruction may well be successful in

dissuading the jury from entering onto the path of inference in

the first place, so that there is no incrimination to forget."

Ibid.

Second, the instruction's effectiveness depends on the

instruction itself — its timing and its substance. Our Court has

held that a swift and firm instruction is better than a delayed

one. Winter, supra,
96 N.J. at 648 (noting the importance of an

immediate and firm instruction to disregard an offending remark);

see also State v. Vallejo,
198 N.J. 122, 134-35 (2009) (citing

cases finding effective curative instructions). Delay may allow

prejudicial evidence to become cemented into a storyline the jurors

create in the course of the trial. See Evidentiary Instructions,

supra, at 422 n.52. That is why our Supreme Court has stated —

in the context of admitting other crimes evidence under N.J.R.E.

404(b) — it is the "better practice" to give limiting instructions

at the time the evidence is presented and again in the final jury

24 A-5520-14T3
charge. State v. Blakney,
189 N.J. 88, 93 (2006). It is thought

the repetition of the instruction prevents the jurors from

"indelibly brand[ing] the defendant as a bad person" and blinding

them from careful consideration of all of the evidence in

deliberations. Ibid.

Furthermore, a specific and explanatory instruction is more

effective than a general, conclusory one. "The Court has

consistently stressed the importance of immediacy and specificity

when trial judges provide curative instructions to alleviate

potential prejudice to a defendant from inadmissible evidence that

has seeped into a trial." Vallejo, supra,
198 N.J. at 135. In

the case of limiting instructions, the court must tell the jury

precisely what the evidence may be used for, as well as what it

may not be used for. State v. Cofield,
127 N.J. 328, 341 (1992)

(pertaining to N.J.R.E. 404(b) evidence).

An instruction is also more effective when it explains itself.

"Because I said so," is likely to be even less effective with a

jury than it is when a parent says it to an eight-year-old. See

Evidentiary Instructions, supra, at 439 (stating, based on a review

of empirical research, that instructions "work better when the

judge gives the jury a reason to follow them"); Id. at 452 (noting,

subject to exception, that "[o]n the whole, mock jury studies do

25 A-5520-14T3
suggest that evidentiary instructions are more apt to be followed

if the judge explains the reason for the underlying rule").2

Third, a court must ultimately consider its tolerance for the

risk of imperfect compliance. See Bruton, supra,
391 U.S. at 135,

88 S. Ct. at 1627,
20 L. Ed. 2d at 485 (referring to "consequences

of failure so vital" to a criminal defendant). Yet, even in

criminal cases involving errors of constitutional dimension, "not

'any' possibility [of an unjust result] can be enough for a rerun

of the trial." Winter, supra,
96 N.J. at 647. "The possibility

must be real, one sufficient to raise a reasonable doubt as to

whether the error led the jury to a result it otherwise might not

have reached." Ibid. (quoting State v. Macon,
57 N.J. 325, 336

(1971)). By contrast, a non-constitutional error "shall be

disregarded by the appellate court 'unless it is of a nature as

to have been clearly capable of producing an unjust result . . . ."

2
Some of our evidence rules, such as those pertaining to hearsay,
are designed to exclude inherently unreliable evidence. Others,
such as privileges, exclude probative evidence in service of other
policy goals. This difference may affect compliance with a
curative instruction. For example, a judge could explain in detail
why our system excludes an incriminatory patient-to-physician
statement — to encourage candor and protect privacy in the health
care relationship. But, since that does not pertain to the
evidence's probative value, the explanation may be less successful
in persuading a jury to disregard it, than, say, an explanation
as to why a hearsay statement is inherently unreliable, and should
be disregarded.
26 A-5520-14T3
Winter, supra,
96 N.J. at 648 (quoting State v. LaPorte,
62 N.J.
312, 318-19 (1973)).

Finally, based on our deferential standard of review, an

appellate court shall not lightly disturb a trial judge's

determination that the jury will obey a curative instruction. The

trial judge has the benefit of his or her feel of the case,

including observations of the jury throughout the trial. Notably,

the United States Supreme Court has required an "overwhelming

probability" that the jury cannot comply, before concluding a

curative instruction was inadequate. Richardson, supra,
481 U.S.

at 208,
107 S. Ct. at 1708,
95 L. Ed. 2d at 186; see also Greer

v. Miller,
483 U.S. 756, 766 n.8,
107 S. Ct. 3102, 3109 n.8,
97 L. Ed. 2d 618, 630 n.8 (1987) ("We normally presume that a jury

will follow an instruction to disregard inadmissible evidence

inadvertently presented to it, unless there is an 'overwhelming

probability' that the jury will be unable to follow the court's

instructions, and a strong likelihood that the effect of the

evidence would be 'devastating' to the defendant[]" (citing

Richardson, supra,
481 U.S. at 208,
107 S. Ct. at 1708,
95 L. Ed.
2d at 186, and Bruton, supra,
391 U.S. at 136,
88 S. Ct. at 1628,

20 L. Ed. 2d at 485)).

27 A-5520-14T3
3.

Applying these principles, we shall not disturb the trial

court's denial of defendant's requests for a mistrial and a new

trial.

Regarding the nature of the evidence, we decline to find that

plaintiff's disclosure of an alleged settlement offer caused

irremediable prejudice. Evidence of settlement discussions is

inadmissible "to prove liability for . . . or amount of the

disputed claim," but not "when offered for another purpose . . . ."

N.J.R.E. 408. Plaintiff's statement was clearly not offered to

establish liability, which was conceded, nor the amount of her

damages. It was offered to explain why plaintiff thought defendant

had decided to stalk her. She believed he was retaliating because

she refused his offer.

The appropriate frame of reference for deeming the statement

inadmissible is N.J.R.E. 403, which permits the judge to exclude

relevant evidence whose probative value is "substantially

outweighed by the risk of . . . undue prejudice, confusion of

issues, or misleading the jury . . . ." See Shankman v. State,

184 N.J. 187, 208 (2005) (applying N.J.R.E. 403 analysis to whether

to admit settlement-related evidence for a purpose permissible

under N.J.R.E. 408). Defendant contends the jury could conclude

(1) the offer was in fact made, which defense counsel denied, but

28 A-5520-14T3
was hamstrung to refute at trial without exacerbating the

prejudice; and (2) defendant in fact must have had that much money

for him to offer it. There obviously are additional inferences a

jury conceivably could draw: that defendant believed he caused

$750,000 in harm, and plaintiff believed he caused greater harm

than that.

The potential prejudice of plaintiff's comment was apparent

to the trial judge who sustained the objection to it. However,

the prejudice was not irremediable. It was a fleeting comment.

Plaintiff did not even finish the statement that defendant made

the offer. See Jackowitz v. Lang,
408 N.J. Super. 495, 505 (App.

Div. 2009) ("Fleeting comments, even if improper, may not warrant

a new trial, particularly when the verdict is fair.").

Furthermore, plaintiff's statement was not direct evidence

of the amount of plaintiff's damages, or even defendant's

assessment of plaintiff's damages. Thus, it is not equivalent to

evidence of an admission. Cf. Boone, supra,
66 N.J. at 50 (holding

evidence of a withdrawn guilty plea is highly prejudicial and

therefore, inadmissible for any purpose at trial). Nor was it

proof, even if true, defendant himself had $750,000 in hand to

settle the case.3

3
Evidence of insurance — which demonstrates the capacity to pay
a judgment — is inadmissible "on the issue of . . . negligence or
other wrongful conduct." N.J.R.E. 411. Yet, the mere passing
29 A-5520-14T3
Rather, the testimony was prejudicial only if the jury made

various inferences. See Richardson, supra,
481 U.S. at 206-08,

107 S. Ct. at 1706-08,
95 L. Ed. 2d at 184-86. Here, the trial

court surmised that the jurors did not take particular notice of

the comment because none of the jurors crossed out notes about the

comment when instructed. Even if a juror made such an inference,

the judge could explain those leaps were questionable because

litigants are encouraged to settle cases, they may try to do so

for various reasons, and their efforts do not prove they are liable

for certain damages. Some jurors may have already understood that

about settlement discussions. The others could be educated.

In sum, while it may be unrealistic to expect a jury to comply

with an instruction to disregard evidence that directly proves the

ultimate issue in the case, solely because the jury should not

have heard it, the evidence here did not directly prove the quantum

of damages, and the judge could — and did — provide reasons why

jurors should ignore it.

Turning next to the timing and substance of the instruction,

we recognize that the judge's initial effort, while swift, was

misdirected. However, the jurors were released for the day soon

thereafter. Upon their return the following morning, the judge

mention of insurance does not compel a mistrial. Runnacles v.
Doddrell,
59 N.J. Super. 363, 368-69 (App. Div. 1960).
30 A-5520-14T3
promptly delivered an extensive instruction. As noted above, the

judge did not simply direct the jurors to disregard plaintiff's

statement, although he did so in clear and emphatic terms. He

explained why they should do so, in substance, instructing them

that settlement discussions should be disregarded for good reasons

that were apt to be followed.

Third, the risk of imperfect compliance is not intolerable.

Jury reliance on plaintiff's statement would not offend a

constitutional right. Furthermore, it is far from clear that —

even if some jurors considered plaintiff's statement in their

deliberations — the testimony was "clearly capable of producing

an unjust result . . . ." Winter, supra,
96 N.J. at 648 (quoting

LaPorte, supra,
62 N.J. at 318-19). Defendant readily admitted

that he sought to retain his medical license so he could compensate

plaintiff in some measure. He also said he contemplated a possible

cash settlement with plaintiff. Thus, the jury knew defendant was

willing to settle with plaintiff, for some unknown amount, before

hearing plaintiff's reference to a $750,000 offer.

We reject defendant's argument that the jury necessarily

relied upon plaintiff's statement because its award was precisely

twice the amount plaintiff mentioned. Defendant's argument rests

on speculation. Plaintiff did not quantify the damages she sought.

At most, the jury could surmise that plaintiff wanted more than

31 A-5520-14T3
$750,000. Even absent the court's curative instruction, it is

highly questionable that the jury credited plaintiff's statement.

The plaintiff's case itself was grounded in the theory that she

suffered from paranoia and delusions.

In sum, none of the three factors leads us to conclude that

plaintiff's disclosure caused irremediable prejudice, or that the

judge's curative instruction was so ineffectual that a mistrial

or new trial was mandated. Even from our vantage point, confined

to a cold record, and far removed from the human emotion of the

courtroom, the substantial damages caused by defendant's conduct

were manifest.

Defendant's liability was never in question. Nor, was the

fact he inflicted some genuine harm upon his already brain-injured

patient. The questions at the compensatory damage trial were:

what kind of emotional, psychological, or neurological harm did

defendant cause; how long did it, or would it last; and what amount

of money would fairly compensate plaintiff for that harm. The

jury evidently credited plaintiff's experts more than defendant's.

We can only speculate how much plaintiff's own presence, throughout

the trial and in testimony, contributed to the jury's verdict.

However, the trial judge had a front row seat. He was best

situated to draw conclusions about the impact of plaintiff's

fleeting statement in the face of his curative instruction, and

32 A-5520-14T3
the balance of evidence in the case. We shall not disturb his

decision to deny defendant's requests for a mistrial and a new

trial.4

Defendant's remaining arguments challenging the compensatory

damage award lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

III.

We next consider defendant's challenges to the punitive

damage award. Plaintiff's counsel's stray reference to general

deterrence in his opening statement was followed by a prompt

objection, which the court sustained, and a specific instruction

that the jury was to consider only deterrence of the wrongdoer,

which was consistent with the current law. The judge then repeated

the instruction at the end of the trial. We need not engage in a

detailed analysis as we did regarding plaintiff's remark about

settlement. We are satisfied the jury complied with the court's

instruction, which remediated any prejudice counsel's stray

comment may otherwise have caused.

4
In light of the foregoing conclusion, we need not address
plaintiff's argument that any prejudice defendant suffered from
the reference to the alleged settlement offer originated with
defense counsel's open-ended question, and therefore cannot serve
as a vehicle for reversal.
33 A-5520-14T3
Defendant also contends the punitive damage award was

excessive, and the trial court failed to make explicit findings

under the Punitive Damages Act (PDA),
N.J.S.A. 2A:15-5.14(a),

before entering judgment. As we agree with the latter point, we

remand for appropriate findings, and do not reach the excessiveness

point.

The PDA states, "Before entering judgment for an award of

punitive damages, the trial judge shall ascertain that the award

is reasonable in its amount and justified in the circumstances of

the case, in light of the purpose to punish the defendant and to

deter that defendant from repeating such conduct." Ibid. (emphasis

added). In making its "justified in the circumstances"

determination, the court must review the factors the jury

considered under
N.J.S.A. 2A:15-5.12(b). And, in deciding whether

the award was "reasonable in its amount," the court must look at

the same factors the jury considered under
N.J.S.A. 2A:15-5.12(c)

in setting the quantum of such damages. "If necessary to satisfy

the requirements of this section, the judge may reduce the amount

or eliminate the award of punitive damages."
N.J.S.A. 2A:15-

5.14(a).

The court's authority under
N.J.S.A. 2A:15-5.14(a) is

distinct from, and supplementary to, its power that pre-existed

the PDA, to set aside an award because it is "so excessive as

34 A-5520-14T3
irresistibly to give rise to the inference of mistake, passion,

prejudice or partiality." Leimgruber v. Claridge Assoc., Ltd.,

73 N.J. 450, 459 (1977). The PDA was designed to expand the trial

court's authority to control punitive damage awards. See Pavlova

v. Mint Mgmt. Corp.,
375 N.J. Super. 397, 403 (App. Div.) ("The

Legislature's purpose in enacting the Act was to establish more

restrictive standards with regard to the awarding of punitive

damages."), certif. denied,
184 N.J. 211 (2005); Dong v. Alape,

361 N.J. Super. 106, 118 (App. Div. 2003) ("The legislation evinces

a pervasive legislative intent to curb, rather than expand, the

availability of punitive damages.").

A trial court's exercise of authority under
N.J.S.A. 2A:15-

5.14(a) is reviewed for an abuse of discretion. See Saffos v.

Avaya Inc.,
419 N.J. Super. 244, 264 (App. Div. 2011) (affirming

a judge's decision to reduce, but not eliminate, a punitive damages

award under
N.J.S.A. 2A:15-5.14); Tarr v. Bob Ciasulli's Mack Auto

Mall, Inc.,
390 N.J. Super. 557, 565 (App. Div. 2007) (applying

abuse-of-discretion standard of review in affirming a trial

court's decision not to reduce an award under
N.J.S.A. 2A:15-

5.14), aff'd
194 N.J. 212 (2008).5 This deferential standard of

5
In contending that we need not remand because we may review the
award's reasonableness de novo, plaintiff misplaces reliance on
Baker v. Nat'l State Bank,
353 N.J. Super. 145 (App. Div. 2002).
Based on considerations of institutional competence, we held that
a de novo standard of review applies to a trial court's
35 A-5520-14T3
review of a trial judge's reduction or elimination of a punitive

damage award is in keeping with the purpose of this provision to

empower trial judges to review the record and determine if an

award is reasonable in amount, and justified under the

circumstances.

We remand so the judge, who had a feel of the case, may

discharge that authority.

IV.

In sum, we affirm the award of compensatory damages; remand

for a determination whether the punitive damage award was

reasonable and justified pursuant to the PDA. We do not retain

jurisdiction.

determination that a punitive damages award violated a defendant's
substantive due process rights. Baker, supra,
353 N.J. Super. at 152-53; see also BMW of N. Am., Inc. v. Gore,
517 U.S. 559, 574-
75,
116 S. Ct. 1589, 1598-99,
134 L. Ed. 2d 809, 826 (1996)
(setting forth the factors for deciding substantive due process
challenge). However, a due process challenge is distinct from a
PDA analysis. See Baker v. Nat'l State Bank,
161 N.J. 220, 231
(1999) (distinguishing between review of a punitive damages award
under PDA and under substantive due process standard of BMW v.
Gore); see also Cooper Indus., Inc. v. Leatherman Tool Group,
Inc., 532 U.S., 424, 433,
121 S. Ct. 1678, 1683-84,
149 L. Ed. 2d 674, 684-85 (2001) (noting that in absence of a constitutional
issue, federal appellate court applies abuse-of-discretion
standard when reviewing a trial court's scrutiny of jury award of
punitive damages).
36 A-5520-14T3

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