KAREN C. LUSTIG v. AGUIDA REYES
Annotate this CaseNOT 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-4881-14T3
KAREN C. LUSTIG and RONI GILADI,
Plaintiffs-Appellants,
v.
AGUIDA REYES, R.N.,
ZAIDA MELENDEZ, O.R.T.,
ANDREA SARRIS, R.N.,
JERSEY CITY MEDICAL CENTER,
LIBERTY HEALTHCARE SYSTEMS, INC., and
THERESIA OEY, M.D.,
Defendants-Respondents,
and
GEORGE WOROCH, M.D., and
SWIATOSLAW WOROCH, M.D.,
Defendants.
__________________________________________
Argued January 24, 2017 – Decided January 26, 2018
Before Judges Fisher, Leone, and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No. L-
6217-11.
Scott B. Piekarsky argued the cause for
appellants (Piekarsky & Associates, LLC,
attorneys; Scott B. Piekarsky and Mark J.
Heftler, on the briefs).
Sam Rosenberg argued the cause for respondents
Jersey City Medical Center, Zaida Melendez,
O.R.T., Andrea Sarris, R.N., and Theresia Oey,
M.D. (Rosenberg Jacobs & Heller, PC,
attorneys; Sam Rosenberg and Fred J. Hughes,
on the brief).
Michael R. Ricciardulli argued the cause for
respondent Aguida Reyes, R.N. (Ruprecht Hart
Weeks & Ricciardulli, LLP, attorneys; Michael
R. Ricciardulli, of counsel and on the brief;
Daniel B. Devinney, of counsel).
The opinion of the court was delivered by
LEONE, J.A.D.
Plaintiffs Karen C. Lustig and Roni Giladi appeal the trial
court's February 20, 2015 final judgment and order in favor of
defendants, Aguida Reyes, R.N.; Zaida Melendez, O.R.T.; Andrea
Sarris, R.N.; Liberty Healthcare Systems, Inc. d/b/a Jersey City
Medical Center; and Theresia Oey, M.D. (collectively
"defendants"). Plaintiffs also appeal the trial court's June 12,
2015 order denying their motion for a new trial. We affirm both
orders.
I.
Lustig testified at trial as follows. Lustig is a board
certified anesthesiologist who practiced anesthesiology at Jersey
City Medical Center, primarily. Lustig worked in the department
of obstetrics.
2 A-4881-14T3
On December 17, 2009, during a Caesarian section procedure,
Lustig was in the operating room supervising Alisa Uysal, a
certified registered nurse anesthesiologist. In addition to
Uysal, the following medical professionals were present in the
operating room with Lustig: George Woroch, M.D., and Swiatoslaw
Woroch, M.D., Reyes, Melendez, and Sarris. Dr. Oey had been in
the room earlier. After the baby was successfully delivered and
placed in a baby warmer, Lustig took several photos for the baby's
parents. Lustig turned around towards the mother and felt
something catch her ankle, which caused her to trip and fall face-
down onto the floor. While on the floor, Lustig saw a stool near
her feet which she decided she had tripped over. She had not seen
the stool before.
Lustig felt an intense pain in her left shoulder. Jersey
City Medical Center's rapid response team tried to help Lustig up
off the floor, but she declined their assistance. However, she
was unable to get up, and was helped up.
Reyes, Melendez, and Oey testified that they did not see a
stool near where Lustig tripped, and that if it had been there
they would have seen it and moved it before the surgery began.
Charge nurse Andrea DiRubba, who entered the room when the rapid
response team was summoned, testified she did not see a stool
where Lustig fell. Uysal, who had a social relationship with
3 A-4881-14T3
Lustig, testified that she did not know where the stool was before
Lustig tripped, that she saw the stool after Lustig fell, and that
she did not report it to her supervisor as required.
In the second amended complaint, Lustig claimed defendants
were negligent in allowing a stool as a tripping hazard, as a
result of which she was "permanently injured, suffered severe
shock to her nervous system," and was undergoing great pain.
Plaintiff's husband, Giladi, claimed loss of consortium. At the
conclusion of discovery, the trial court granted the unopposed
motions for summary judgment by George and Swiatoslaw Woroch.
At the conclusion of trial against the remaining defendants,
the jury unanimously answered "No" to the following question:
Has Plaintiff Dr. Karen Lustig proven by a
preponderance of the credible evidence and,
without allocating any responsibility to any
defendants, that there was a foot stool in the
operating room on December 17, 2009 in an
unsafe location before Plaintiff Karen Lustig
fell?
On June 12, 2015, the same judge who presided over the trial
denied plaintiffs' motion for a new trial.
Plaintiffs appeal, arguing the trial court erred in: (1)
failing to excuse a juror due to questions about her ability to
be objective; (2) putting undue pressure on the jury to render a
verdict; and (3) denying a new trial because: (a) Giladi did not
consent to a bifurcated trial, (b) the judge permitted testimony
4 A-4881-14T3
about the operating room's measurements, and (c) a defense witness
attempted to console the distraught plaintiff after the jury
verdict and then told her "I was told to say that."
II.
Plaintiffs argue the last-seated juror should have been
removed from the jury for cause. "Trial court decisions as to
whether to excuse prospective jurors for cause are given
substantial deference." Arenas v. Gari,
309 N.J. Super. 1, 18
(App. Div. 1998); see State v. Martini,
131 N.J. 176, 219 (1993).
"These decisions are generally discretionary as they implicate the
trial judge's superior ability to evaluate the whole person in the
courtroom." Arenas,
209 N.J. Super. at 18. Thus, "trial courts
possess broad discretion in determining whether a potential juror
should be removed, and their determination will be disturbed only
if that discretion is abused." State v. Simon,
161 N.J. 416, 475
(1999). We must hew to that deferential standard of review.
Like the other prospective jurors, the juror filled out a
questionnaire to check for anything which might compromise a
juror's ability to be fair and impartial. The court then engaged
in a colloquy with the juror about her positive answers to the
questionnaire. During the juror's colloquy, she stated she was
an attorney, was currently in-house counsel for a medical education
company, and had represented her company in employment actions and
5 A-4881-14T3
workers compensation cases. When the court asked if there was
"anything about those duties that would prevent [her] from being
fair and impartial in hearing this case?" she responded, "[n]o."1
When the trial court asked the juror if she thought society
was too litigious, she replied that she was "a fan of tort reform.
I do think that people tend to be a little bit too litigious over
minor issues." However, she confirmed to the court that was "just
a general view," and she could "put that aside and evaluate this
case fairly and impartially [with an] open mind to both the
plaintiff and the defendant." She added, "it's a case by case
analysis."2
The juror said her sister was a registered nurse who had
worked in a hospital in New Jersey, but answered "[n]o" when the
court asked if there was "[a]nything about the relationship with
your sister or anything she told you over the years that prevents
you from being fair and impartial in this case?"
1
She also discussed particular cases, and repeatedly answered
"no" when the court asked if there was "anything about that
experience that affects [her] ability to be fair and impartial in
hearing this case?"
2
When asked the number of lawsuits in which friends and family
had raised claims, the juror stated: "It seems like (Indiscernible)
society." Plaintiffs claim the indiscernible phrase was "a
litigious." In any event, the court asked if particular lawsuits
and injuries of family members would prevent the juror from being
fair and impartial in this case, and she answered, "[n]o."
6 A-4881-14T3
When asked by the trial court "[d]o you think you would be a
good juror?" she responded, "I think so," because "I'm a lawyer"
and she had "to evaluate the facts based against the evidence."
When asked if she could "have an open mind, both sides in the case
and evaluate?" she replied, "I believe so." The court asked if
she was "[c]onfident in that" and she replied, "[y]es."
Plaintiffs' counsel moved to strike the juror for cause
because of her comments regarding litigiousness and tort reform,
and because her sister had a connection to the medical field. The
trial court denied the challenge, crediting the juror's responses
that she would be impartial and consider the case on its merits.
Plaintiff's counsel cited the juror's prior employment as a
compliance officer for three insurance-affiliated broker-dealers
on Wall Street. Plaintiff's counsel argued the juror "as a
professional has been evaluating claims," and that "there could
be a disposition toward" insurance companies. The trial court
found no basis to believe the juror would be partial to insurance
companies. Nonetheless, the court inquired further. The juror
explained her duties as a compliance officer involved auditing the
broker-dealers' financial service representatives, resolving
customer complaints, and responding to regulators. The court
asked if "anything about those duties that [she] had as a
compliance officer make[s] it difficult for [her] to be fair and
7 A-4881-14T3
impartial to serve as a juror in this case?" The juror responded:
"I don't think so." The court observed: "Ok. I'm satisfied."
On appeal, plaintiffs also cite the juror's statement that
her father had surgeries after a car accident, and that doctors
had claimed his earlier doctors had done the surgeries incorrectly.
When the trial court asked if anything about that experience
affected her ability to be fair and impartial in this case, she
replied, "I don't think so." The court asked if she was "confident
of that," and she answered, "I believe I am."
The trial court credited the juror's responses that she could
be a fair and impartial juror despite being an attorney, a former
Wall Street compliance officer, the sister of a nurse, and the
daughter of a possible victim of malpractice. On appeal,
plaintiffs do not argue each experience necessarily barred her
from serving as a juror. Plaintiffs also do not claim the juror's
answer to the standard "tort reform" question itself disqualified
her; again, the court credited that she could put her views aside
and evaluate this case fairly and impartially. Instead, plaintiffs
stress the number of these potential sources of bias.
Our Supreme Court has rejected "'the imputation of bias to
[a juror] as a matter of law,'" holding a recent victim of an
armed robbery is not barred from being a juror in an armed robbery
trial. State v. Singletary,
80 N.J. 55, 59-63 (1979) (citations
8 A-4881-14T3
omitted). The less visceral experiences of the juror here, even
considered cumulatively, did not disqualify her where "the trial
court questioned [her] extensively and concluded from [her]
responses that [s]he could, in fact, be impartial." See id. at
64. Even if "it might well have been the wiser course to have
excused [the juror] for cause, the failure to do so was not so
clearly an abuse of discretion." Ibid.
Plaintiffs attempt to analogize this case to Catando v.
Sheraton Poste Inn,
249 N.J. Super. 253 (App. Div. 1991). There,
the judge asked if any juror "has anything against plaintiffs?"
and a juror responded that "a lot of times people sue me for no
apparent reason." Id. at 259. Asked if he "would hold that
against these parties," he replied: "Recently I've lost some cases
where I've had no reason to lose." Id. at 260. When the judge
again asked if he would "hold your experiences against them in
deciding this case?" the juror answered, "I don't think so." Id.
at 260. We reversed, ruling:
It is one thing to accept a juror with a
potential disqualification who repeatedly
insists that he or she can sit fairly and
impartially. It is quite another to accept a
juror who repeatedly expresses doubts about
his own ability to sit. . . . The final "I
don't think so" did not solve the problem.
[Id. at 261 (citation omitted).]
9 A-4881-14T3
Catando does not resemble this case. Here, the juror
repeatedly insisted she could sit fairly and impartially,
generally giving unequivocal answers as set forth above.3 She
thrice said "I don't think so," but twice the trial court's
diligent inquiry clarified she was confident in her answer. The
third time, the court stated it was "satisfied" with her answer.
When a judge concludes from questions and responses that a
venireperson will be impartial, "such professions of impartiality
should be accorded a great deal of weight." Amaru v. Stratton,
209 N.J. Super. 1, 18 (App. Div. 1985) (citing Singletary,
80 N.J.
at 64).
Decisions concerning the potential bias of
prospective jurors are primarily subjective in
nature. They require at bottom a judgment
concerning the juror's credibility as he
responds to questions designed to detect
whether he is able to sit as a fair and
impartial trier of fact. Consequently, such
evaluations are necessarily dependent upon an
observation of the juror's demeanor during the
course of voir dire – observations which an
appellate court is precluded from making.
[State v. Papasavvas,
163 N.J. 565, 595 (2000)
(quoting Singletary,
80 N.J. at 63).]
Plaintiffs cite our statements in Catando that "[a] juror
must not only be impartial, unprejudiced and free from improper
3
In addition, the juror answered "[n]o" when asked if "[a]nything
not covered in the questionnaire affects your ability to be fair
and impartial."
10 A-4881-14T3
influences, [the juror] must also appear to be so," and that
"'[t]here are simply too many unbiased and otherwise qualified
individuals eligible to sit on any given jury to quibble over
persons who have voluntarily articulated a grave potential for
bias.'"
249 N.J. Super. at 261-62 (citations omitted). Here,
however, the juror repeated and unequivocally stated she would be
a fair and impartial juror. She never once indicated that she
could not be fair and impartial. Cf. Arenas,
309 N.J. Super. at
17-18, 20-21 (reversing where a juror questioned her own fairness
and impartiality, repeatedly stated she was "not really sure" she
could be impartial, and then said, "I think I could be pretty
fair"). Accordingly, we cannot say the trial court abused its
discretion in denying plaintiff's challenge for cause.
III.
Plaintiffs claim on appeal that the trial court placed undue
pressure on the jury to reach a verdict in fifteen minutes.
Because plaintiffs did not raise this claim at trial, they must
prove plain error. Plaintiffs must show an error that was "clearly
capable of producing an unjust result." R. 2:10-2.
After the trial court gave its final instructions and
designated the foreperson, it remarked to the jury:
We only have approximately 15 minutes or
so before we have to break and come back
tomorrow. So the first question I want you
11 A-4881-14T3
to ask is — I mean, it's possible, but if you
think you can fairly assess the evidence in
the case and within the next 15 minutes reach
a verdict, you can say want to continue.
But if you think and honestly feel that
it's going to take more than 15 minutes, then
you might [as] well write me a note to that
effect and we'll come back tomorrow . . . at
1:30 . . . and then the deliberations can
continue.
So the first question is if you can
answer this is whether you want to deliberate
for the next 15 minutes or not and come back
tomorrow at 1:30. Okay? So have that
discussion in — in the jury room. Write a
note to me to that effect as soon as you can.
After the jurors deliberated for a couple minutes, they
informed the trial court they wished to continue their
deliberations for the next fifteen minutes. The jury deliberated
for about fifteen minutes and returned a unanimous verdict.
We have no doubt the trial court asked this question solely
for "trial management reason[s]" and out of "courtesy" to the
jury. State v. Barasch,
372 N.J. Super. 355, 362 (App. Div. 2004).
However, the court did not order the jury to return a verdict in
fifteen minutes. Rather, it recognized administrative realities
and offered the jury the choice of commencing deliberations
immediately but recessing after fifteen minutes, or postponing
their deliberations until the next day. However, "'[t]rial courts
must understand . . . that nothing is more important than that
they set the atmosphere of calm, unhurried, and studied
12 A-4881-14T3
deliberation that is the hallmark of a fair trial.'" Id. at 363
(quoting State v. Roberts,
163 N.J. 59, 60 (2000)). Nonetheless,
the court's comments were not plain error.
This case resembles Barasch. There, at approximately 4:30
p.m. on Friday, after three hours of deliberations, the court
brought the jurors into the courtroom and told them "we usually
end the Court day around this time. Usually a little bit before."
Id. at 360. The judge suggested that they end deliberations "and
come back on Monday unless you think you're close to a verdict
then we could stay a little longer. But I don't anticipate staying
any much longer than 5:00," when the air conditioning would shut
off. Id. at 360-61. The court emphasized it was "not trying to
pressure [the jury] into any verdict or anything." Id. at 360.
After the court asked the jurors to let it know what they wanted
to do, the jury returned a verdict at 4:47 p.m. Id. at 361. We
ruled that "the judge's interruption in this case was not
prejudicial to defendant because what was said cannot be
objectively interpreted as coercing any individual member of the
jury to forego his or her independent judgment of the case." Id.
at 362.
Under similar circumstances, we found no plain error in State
v. Tarlowe,
370 N.J. Super. 224, 238 (App. Div. 2004). There, on
Thursday, "the judge brought [the jurors] into the courtroom at
13 A-4881-14T3
approximately 5:00 p.m. and inquired if they wished to recess for
the night. At their request, he allowed them to continue to
deliberate rather than return on the following Wednesday," and
they returned a verdict that evening. Ibid. We ruled: "Defendant
did not object to this procedure; it is therefore apparent that
defendant's counsel approved of the court's accommodation of the
jurors at that time. We do not find that the court's accommodation
of the jury was inappropriate, nor was it 'clearly capable of
producing an unjust result.'" Ibid. (quoting R. 2:10-2).
Plaintiffs argue those cases are distinguishable because here
the trial court's question preceded deliberations, whereas the
judges' comments came after three hours of deliberations in
Barasch, 372 N.J. Super. at 360, and after two hours of
deliberations in Tarlowe,
370 N.J. Super. at 238. However, in
Roberts, even before trial began the judge "informed the jury that
it was forecasting that only a brief period of time would be
necessary for the jury to deliberate on defendant's guilt."
Roberts,
163 N.J. at 60. Nonetheless, our Supreme Court has held
the judge's "preliminary remarks were not plain error." Ibid.
Moreover, the issue before the jury here was far simpler than
in those cases, where the juries had to consider multiple criminal
14 A-4881-14T3
counts each with multiple elements.4 By contrast, in this first
half of the bifurcated trial, the jury had to decide only one
element: whether "there was a foot stool . . . in an unsafe
location."
Further, the jury's verdict was supported by the evidence.
No witness, including Lustig and her witness Uysal, saw a stool
in the operating room walkways before Lustig tripped. Three
witnesses testified it had not been there before she tripped, and
four witnesses including a non-party testified it was not there
after she tripped.
In any event, "[n]o matter how complicated the case, brevity
in jury deliberations is not, in itself, a basis for scuttling a
verdict." Veranda Beach Club Ltd. P'ship v. W. Sur. Co.,
936 F.2d 1364, 1383 (1st Cir. 1991) (denying relief where deliberations
lasted fifteen minutes); accord United States v. Cunningham,
108 F.3d 120, 123 (7th Cir. 1997) (denying relief where deliberations
lasted ten minutes); Paoletto v. Beech Aircraft Corp., 464 F.2d 4
See Roberts,
163 N.J. at 60 ("After three and [a] half hours of
deliberation, the jury found defendant guilty of first-degree
robbery" and two weapons offenses); Barasch,
372 N.J. Super. at 360 ("the jury acquitted him of the theft charge, but convicted
him of second-degree failure to remit sales taxes collected or
withheld in an amount of $75,000 or more"); Talowe,
370 N.J. Super.
at 228 ("a jury found defendant . . . guilty of second-degree
health care claims fraud . . . and third-degree theft by
deception").
15 A-4881-14T3
976, 983 (3d Cir. 1972). "Brief deliberation, by itself, does not
show that the jury failed to give full, conscientious or impartial
consideration to the evidence." Wilburn v. Eastman Kodak Co.,
180 F.3d 475, 476 (2d Cir. 1999) (denying relief where deliberations
lasted twenty minutes); see Sackman v. N.J. Mfrs. Ins. Co.,
445 N.J. Super. 278, 292 (App. Div. 2016) (same).
Because plaintiffs fail to show that the trial court's
question was "clearly capable of producing an unjust result," it
was not plain error. See R. 2:10-2.
IV.
Plaintiffs claim other errors cumulatively necessitate a new
trial. "An appellate court may reverse a trial court's judgment
if 'the cumulative effect of small errors [is] so great as to work
prejudice'" and "deprive[] a party of a fair trial." Torres v.
Pabon,
225 N.J. 167, 190-91 (2016) (quoting Pellicer,
200 N.J. at
53-57).
A.
Plaintiffs argue, for the first time, the trial court had a
colloquy about consenting to bifurcating the trial only with Lustig
and did not seek express consent from Giladi. We note consent is
not necessarily a prerequisite for bifurcation, as "the court may
on a party's or its own motion, direct that the issues of liability
and damages be separately tried." R. 4:38-2(b) (emphasis added).
16 A-4881-14T3
Moreover, Giladi's only claim was for loss of consortium as
Lustig's husband, and thus was derivative of Lustig's liability
claim.
In any event, the counsel jointly representing Lustig and
Giladi assured the trial court that he spoke to his "clients" and
"they agree to the bifurcation." Furthermore, Giladi proceeded
with the bifurcated trial and raised no objection until appeal.
Thus, plaintiffs have not shown plain error. R. 2:10-2.
B.
Plaintiffs next argue the trial court erred when it permitted
defendants to introduce measurements of the operating room where
Lustig fell. "'[C]onsiderable latitude is afforded a trial court
in determining whether to admit evidence, and that determination
will be reversed only if it constitutes an abuse of discretion.'"
State v. Kuropchak,
221 N.J. 368, 385 (2015) (citation omitted).
"Under that standard, an appellate court should not substitute its
own judgment for that of the trial court, unless 'the trial court's
ruling "was so wide of the mark that a manifest denial of justice
resulted."'" Ibid. (citations omitted); accord N.J. Div. of Child
Prot. & Permanency v. N.T.,
445 N.J. Super. 478, 492 (App. Div.
2016).
During opening statements, the defense attorneys referenced
D-35, a diagram of the operating room. Before Charge Nurse DiRubba
17 A-4881-14T3
was called as plaintiffs' first witness, defense counsel asked to
use D-37, a version of the diagram on which DiRubba had written
measurements. Defense counsel proffered the testimony DiRubba
would and later did give: that she had years of familiarity with
the room and its contents, that they were unchanged since the
accident, and that she had recently taken measurements and marked
them on the diagram. Defense counsel stated DiRubba's annotated
diagram and testimony would "show the jury through demonstrative
evidence what this room looked like in terms of its configuration,
dimensions, and so on and so forth."
Plaintiffs' counsel objected to the measurements on D-37. He
argued that he was being "blind-sided" because the measurements
were taken that week, DiRubba was not questioned at her deposition
about the dimensions of the operating room, and that the
measurements were highly prejudicial because they were not the
measurements that existed at the time of the accident.
The trial court overruled the objection, allowed the use of
the diagram with the measurements in DiRubba's testimony, and
ultimately admitted it into evidence. We find no abuse of
discretion.
"There is nothing inherently improper in the use of
demonstrative or illustrative evidence." Rodd v. Raritan
Radiologic Assocs., P.A.,
373 N.J. Super. 154, 164 (App. Div.
18 A-4881-14T3
2004) (quoting State v. Scherzer,
301 N.J. Super. 363, 434 (App.
Div. 1997)). Demonstrative evidence can be a "visual aid - a
model, diagram or chart used by a witness to illustrate his or her
testimony and facilitate jury understanding." Id. at 165 (quoting
Macaluso v. Pleskin,
329 N.J. Super. 346, 350 (App. Div. 2000).
"In general, the trial court enjoys wide latitude in admitting or
rejecting such replicas, illustrations and demonstrations and in
controlling the manner of presentation and whether or not
particular items are merely exhibited in court or actually received
in evidence." Ibid. However, "such evidence [must] be
authenticated, N.J.R.E. 901, and relevant, N.J.R.E. 401, [and] its
probative value must not be offset by undue prejudice, unfair
surprise, undue consumption of trial time, or possible confusion
of issues due to the introduction of collateral matters." Id. at
165-66.
The measurements on the diagram were authenticated by
DiRubba, who testified they were the same as in 2009. The
measurements and DiRubba's testimony about them were relevant to
how the accident occurred, and had significant probative value.
Plaintiffs' claims that the layout of the room had changed since
the accident and that DiRubba's measurements were inaccurate could
be explored by questioning DiRubba and by introducing contrary
evidence.
19 A-4881-14T3
As the trial court ruled, DiRubba could testify about her
estimates of the dimensions regardless of whether that was explored
at her deposition. Like other witnesses, DiRubba drew her own
diagram of the operating room at her deposition, and plaintiffs
could have asked her to estimate the dimensions then.
DiRubba's actual measurements of the room are more
problematic. Because they were made after discovery ended and
were disclosed shortly before trial, they posed a risk of unfair
surprise. However, the trial court addressed that risk. The
court ordered defendants to provide plaintiffs a copy of D-35, the
diagram without the measurements, so Lustig could use it as a
demonstrative exhibit to give her own version of the dimensions
of the room. The court made clear that plaintiffs could introduce
such contrary evidence, and that in examining DiRubba plaintiffs
would have "full rights of cross-examination even though [they
were] calling the witness." Moreover, plaintiffs could and did
use the diagram DiRubba drew at her deposition to question her on
direct, and they introduced it into evidence. These measures were
adequate to prevent undue prejudice.
In any event, the ultimate issue is whether the measurements'
"probative value is substantially outweighed by the risk of" unfair
surprise and "undue prejudice." N.J.R.E. 403; see Rodd,
373 N.J.
Super. at 165-66. The trial court emphasized the measurements
20 A-4881-14T3
would be an "aid to the jury" by helping "give a picture to the
jury of what the accident scene looked like." The court did not
find "any real surprise" or prejudice because the layout of the
operating room had been an issue throughout the case including the
depositions of numerous witnesses. "[W]eighing the issue," the
court felt use of the measurements was "fair and balanced."
Appellate courts "accord trial judges broad discretion in
applying the balancing test." State v. DiFrisco,
137 N.J. 434,
496 (1994). "Determinations pursuant to N.J.R.E. 403 should not
be overturned on appeal 'unless it can be shown that the trial
court palpably abused its discretion[.]'" Green v. N.J. Mfrs.
Ins. Co.,
160 N.J. 480, 492 (1999) (quoting State v. Carter,
91 N.J. 86, 106 (1982)). Here, "[w]e defer to the trial judge's
exercise of discretion in [admitting] the evidence under N.J.R.E.
403." Fitzgerald v. Stanley Roberts, Inc.,
186 N.J. 286, 321
(2006).
C.
Plaintiffs next argue the trial court abused its discretion
in denying her new trial motion without holding a plenary hearing
to determine if Reyes perjured herself during trial.
"A new trial may be granted to all or any of the parties
. . . if, having given due regard to the opportunity of the jury
to pass upon the credibility of the witnesses, it clearly and
21 A-4881-14T3
convincingly appears that there was a miscarriage of justice." R.
4:49-1(a). Plaintiffs must carry a "heavy burden." Pellicer,
200 N.J. at 52. In particular, "the party claiming that an issue was
decided on the basis of perjurious testimony must do much more
than raise a reasonable question respecting the witness's
credibility." State v. Hill,
267 N.J. Super. 223, 226 (App. Div.
1993).
In plaintiffs' motion for a new trial, Lustig's affidavit
stated as follows. Shortly after the verdict, plaintiffs were
sitting outside the courtroom. Lustig was crying. Reyes was on
her way out of the courthouse, saw plaintiff, walked over, stopped,
gave Lustig a hug and kiss on the cheek, and said: "Please stop
crying, things will get better." Lustig replied: "How could things
get better? My entire career was lost over a stepstool; I am
injured and can't support my family." Reyes, crying, responded:
"I am sorry. I was told to say that." Giladi's affidavit added:
"Although I do not have the opportunity to ask Ms. Reyes what she
meant when she said that she was 'told to say that,' it was my
impression and understanding that she was acknowledging that she
did not tell the truth on one or more issues when she testified
in this case."
After hearing argument and receiving briefing, the trial
judge stated that based on "my observation of Ms. Reyes' testimony
22 A-4881-14T3
during the course of this trial and the certifications that have
been submitted to me, I don't even find there to be a reasonable
question respecting Ms. Reyes' credibility raised by these
certifications." The court was "convinced" that "whatever words
were spoken" by Reyes to Lustig after the verdict "were comforting
words and nothing more than that." The court found neither
"sufficient issues of material fact" to mandate a plenary hearing,
nor any "basis for setting aside the jury verdict."
The trial court's ruling was not an abuse of discretion.
Although Reyes submitted a certification disputing that she said
"I was told to say that," the court did not base its ruling on her
version over plaintiffs' version, but found no basis for relief
"whatever words were spoken." Moreover, the natural reading of
Lustig's version indicated Reyes's statement, "I was told to say
that" referred to what Reyes had just said, namely "Please stop
crying, things will get better."
Giladi's mere "impression and understanding" that Reyes was
admitting perjuring herself during her testimony a week earlier
has no evident basis in Reyes's statement. Moreover, no such
impression was averred to by Lustig, who knew Reyes. The court
further discounted Giladi's unsupported hypothesis by properly
relying on its own recollection of Reyes's testimony. The court
specifically recalled that Reyes on the stand "was a bit nervous
23 A-4881-14T3
but composed," "gave her version of well what occurred as she
observed it," and "was fully examined by the plaintiff's
attorney."5
Thus, the trial court permissibly found Lustig's version of
the conversation did not indicate Reyes had perjured herself on
the stand. Therefore, the court did not abuse its discretion in
not holding a plenary hearing. United States Bank Nat'l Ass'n v.
Curcio,
444 N.J. Super. 94, 111 (App. Div. 2016).
New trial "motions are addressed to the sound discretion of
the trial court and will not be disturbed unless that discretion
has been clearly abused." Quick Chek Food Stores v. Springfield,
83 N.J. 438, 445-46 (1980). "[W]hen evaluating the decision to
grant or deny a new trial, 'an appellate court must give "due
deference" to the trial court's "feel of the case."'" Hayes v.
Delamotte, __ N.J. __, __ (2018) (slip op. at 21) (citation
omitted). Here, we must "not substitute our opinion for the trial
court's because there was no abuse of discretion." Baumann v.
Marinaro,
95 N.J. 380, 389 (1984).
The remainder of plaintiffs' arguments are without sufficient
merit to warrant discussion. R. 2:11-3(e)(1)(E).
5
The court did not rely on Reyes's assurances in her certification
that "no one told me what to say at trial" and "I testified
truthfully at trial."
24 A-4881-14T3
Affirmed.
25 A-4881-14T3
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