KYLIE TAPIA VS. ABU S. ALAM, MD (L-0694-15, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2611-18T1

KYLIE TAPIA, an infant by her
Guardian ad Litem MARIA TAPIA,
and MARIA TAPIA and OCTAVIO
TAPIA, Individually,

Plaintiffs-Respondents,

v.

ABU S. ALAM, MD, ABU S.
ALAM, PA, RICHARD H.
BLUM, MD, ATLANTIC
MATERNAL-FETAL MEDICINE
AT OVERLOOK MEDICAL
CENTER, ATLANTIC HEALTH
SYSTEM, and SVETLANA
PORTNOW, RDMS,

Defendants,

and

GARRY FRISOLI, MD,

Defendant-Appellant.
______________________________

Argued February 11, 2020 – Decided September 28, 2020
 Before Judges Hoffman, Currier, and Firko.

On appeal from the Superior Court of New Jersey, Law
Division, Union County, Docket No. L-0694-15.

Beth A. Hardy argued the cause for appellant (Farkas
& Donohue, LLC, attorneys; Beth A. Hardy, of counsel
and on the briefs).

Dennis M. Donnelly argued the cause for respondents.

The opinion of the court was delivered by

HOFFMAN, J.A.D.

In this medical malpractice case, defendant Gary Frisoli, M.D. appeals

from the denial of his motion for a new trial after a jury found him at fault for

failing to diagnose fetal distress, which would have resulted in the earlier

delivery of plaintiffs' daughter, Kylie. 1 Defendant argues the trial judge

committed reversible error when she failed to declare a mistrial after his attorney

became ill during the trial; on a related issue, defendant contends the judge erred

"in failing to allow [him] to supplement the record concerning [his] trial

counsel's impairment." Alternatively, defendant contends that errors in the jury

1
In this opinion, we refer to Dr. Frisoli as defendant as he was the only
remaining defendant at trial. Before trial, plaintiffs settled with the attending
obstetrician, defendant Abu S. Alam, M.D. In addition, for ease of reference,
we refer to plaintiffs and their children by their given names.
A-2611-18T1
2
verdict sheet and other trial errors warrant reversal. Following our review of

the trial record and the parties' briefs, we affirm.

I

In 2006, Maria Tapia became pregnant with twins. At that time, she came

under the care of Dr. Alam, who delivered her first child. Because of the twin

pregnancy, Dr. Alam, a general obstetrician, referred Maria to defendant, a

maternal fetal medicine specialist, for prenatal testing, including fetal

ultrasounds.

On December 8, 2006, defendant performed a routine anatomy scan at

twenty weeks and four days gestation, which was within normal limits and

showed both twins were concordant or growing equally. On March 2, 2007,

defendant evaluated the growth of the twins at thirty-two weeks gestation; at

that time, he found a discordancy 2 in the weight of the twins, as the estimated

2
According to defendant, twins normally grow at the same rate during
pregnancy. "But if there's a difference [in weight] of [twenty] percent or more,
most of us in maternal fetal medicine would consider that significant in terms of
discordancy." Plaintiffs' maternal fetal medicine expert, William Roberts, M.D.,
testified that when the difference in weight exceeds thirty percent, "that's
considered severe fetal discordance." Defendant testified his "calculation of the
discordancy on [March 2] was [thirty-two] percent."

A-2611-18T1
3
fetal weight (EFW) for Twin A3 had decreased from the fiftieth percentile to

the sixteenth percentile, while Twin B's EFW had increased from the fiftieth

percentile to the sixty-sixth percentile. Defendant further noted that Twin A's

abdomen was "significantly smaller" than Twin B's, "suggestive of asymmetric

fetal growth restriction."

As a result of these findings, defendant performed a biophysical profile 4

(BPP), which was normal for both twins. He also performed umbilical artery

Doppler studies to assess the blood flow of the placentas, and determined those

studies were also within normal limits and reassuring. In a report faxed to Dr.

Alam, defendant advised he wanted to see Maria again in two to three weeks for

additional ultrasound scans and Doppler studies. In the meantime, he

3
In prenatal testing, twins are referred to as "A" and "B." Here, Kylie was Twin
A and her brother Aiden was Twin B. On March 2, the EFW for Twin A was
1489 grams and the EFW for Twin B was 2202 grams.
4
According to defendant, a BPP involves assessing the "biophysical activities
or characteristics of the baby," looking "at the fetal tone, fetal movement, the
amniotic fluid volume, and fetal breathing." On the March 2 BPP, defendant
scored "a two" for each item, "which is the most you can give. So the score of
the [BPP] was eight out of eight."

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recommended that Dr. Alam perform weekly non-stress tests 5 (NSTs) in his

office.

The next BPP and Doppler studies were completed on Thursday, March

22, 2007, when defendant was not in his office. Svetlana Portnoy, a registered

ultrasonographer, performed the studies in defendant's absence and did not note

anything requiring immediate communication to a physician. Defendant

reviewed the scans when he returned to the office on March 26. At that time,

he observed continued discordancy between the twins; however, because Twin

A had grown 500 grams since the last exam, and the BPP and Doppler studies

were normal, he found the test results reassuring. Nevertheless, since the

discordancy now demonstrated borderline growth restriction, defendant

recommended in his report to Dr. Alam that Maria return in one week for follow-

up scans, and in the interim, that Dr. Alam should perform NSTs "twice a week."

Unbeknownst to defendant, Dr. Alam never followed his recommendation to

perform NSTs, as Dr. Alam did not place any clinical value in NSTs when the

BPP is normal.

5
Defendant described the NST as "an independent test of fetal well-being . . .
If it's reactive, it's an indication of . . . the brain's oxygenation." The test looks
"at whether there are [fetal heartbeat] accelerations with fetal moment. If there
are, the baby's test is reactive. If [there] are not, it's non-reactive."

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 When Maria returned to defendant on March 30, 2007, her Doppler studies

were abnormal. According to defendant,

[T]he Dopplers . . . showed me that now there was
impedance or resistance of placental blood flow across
the placenta to the baby. That was what caught my eye,
the abnormal Dopplers. And that abnormal Doppler is
what made me do a [NST] right [then] and there on her.
And when I saw that the non-stress test was non-
reactive, combined with the abnormal Doppler, that
. . . precipitated my recommendation to have the baby
delivered that day as soon as possible, as I felt that there
was a significant change that I had not seen before.

Defendant recounted that he then "escorted Maria to labor and delivery,"

called the covering physician, 6 "explained to him the situation[,] and gave him

my recommendations to have the patient delivered that day as soon as possible."

The covering physician delivered the twins later that day. Plaintiffs contend this

delivery should have occurred four days earlier, on March 26, when defendant

reviewed the results of the March 22 testing. During those next four days,

plaintiffs contend Kylie endured increasing hypoxia, 7 which caused her to

sustain severe brain damage.

6
Dr. Alam was on vacation.
7
According to the National Institute of Neurological Disorders and Stroke,
"Cerebral hypoxia refers to a condition in which there is a decrease of oxygen
supply to the brain even though there is adequate blood flow." National

A-2611-18T1
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 At trial, plaintiffs asserted that defendant's failure to timely diagnose and

treat intrauterine growth restriction8 (IUGR) resulted in a four-day delay of the

twins' C-section delivery; a timely C-section would have prevented Kylie from

sustaining permanent brain damage. Defendant denied all allegations of

negligence and contended that a preexisting condition, gestational alloimmune

liver disease9 (GALD) – a condition that could not be diagnosed prior to delivery

– caused Kylie's brain damage.

As argued by plaintiffs, and not challenged by defendant, both sides

appear to agree on the following undisputed foundational facts:

• On March 30, 2008, for the third time, defendant performed the pre-birth
surveillance test, BPP, which he was using to monitor the well-being of
the twins.

• Defendant had special, extra training and was a maternal fetal medicine
specialist, and because of that, he had been asked by Maria's regular

Institute of Health, Cerebral Hypoxia Information Page,
https://www.ninds.nih.gov/disorders/all-disorders/cerebral-hypoxia-
information-page (last visited Sept. 14, 2020).
8
According to plaintiffs' neonatology expert, Marcus Hermansen, M .D., IUGR
refers to a fetus or baby whose fetal weight is "less than the tenth percentile," or
less than that of ninety percent of fetuses or babies of the same gestational age.
9
Sarah Taylor, M.D., plaintiffs' pediatric liver disease expert, described GALD
as a rare disease that onsets during pregnancy and occurs when the mother has
an immune response that causes certain antibodies to cross the placenta and
damage the developing liver of a fetus during gestation. According to Dr.
Taylor, Kylie did not have GALD.
A-2611-18T1
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 obstetrician, Dr. Alam, who would normally deliver the twins, to
periodically complete BPPs throughout this higher-risk twin pregnancy.

• On March 30, 2008, defendant saw Maria and did a series of tests, which
revealed three abnormal results for Kylie, two from his BPP and one from
an NST. Defendant considered the results "alarming." Those abnormal
results were:

a.) an estimated fetal weight for Kylie of less than the tenth
percentile on the ultrasound component of the BPP;

b.) a failing total score (four out of eight) on the BPP;

c.) Kylie's fetal monitor tracing was "non-reactive," meaning the
absence of heartbeat accelerations with fetal movement.

• As a result, defendant recommended a Caesarian section (C-section)
delivery "as soon as possible."

• Notwithstanding the C-section delivery, Kylie sustained catastrophic
injuries and remains blind, unable to talk, and confined to a wheelchair.

• Some growth discrepancy between the twins had been occurring for the
last month of this pregnancy and had progressed to IUGR for Kylie on the
March 22 BPP, which defendant's technician performed, and defendant
read on March 26.

• Side-by-side growth charts and an immediate post-birth photo of the twins
visually illustrated the extent of fetal growth discordancy between the
twins.

According to plaintiffs, beyond these foundational facts, "both sides

completely and diametrically disagreed on what reasonable inferences flowed

from and must be accepted by the jury from those foundational facts as to both

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what was required of [defendant] under the standard of care (negligence) and

what caused Kylie’s brain damage and when it occurred (causation)."

Plaintiffs' Experts

According to plaintiffs' experts, Kylie's IUGR was caused by nutritional

placental insufficiency which was depressing her oxygen and would foreseeably

progress to brain damage. Where there is IUGR, even a perfect BPP score is

only good for four days. With IUGR, interim fetal surveillance was critically

important, requiring defendant to urgently call Dr. Alam on March 26, 2008 and

confirm that his NST results remained reassuring. 10 In fact, Kylie was suffering

sub-acute distress from nutritional insufficiency that was causing her IUGR; by

March 26, 2008, she had already begun suffering early – but still not permanent

– brain damage from hypoxia. Thus, if done on March 26, 2008, plaintiffs'

experts opined that Kylie's NST would have been nonreactive, requiring a

10
On this point, the opinion of plaintiff's expert was supported by a guideline
of the American Institute of Ultrasound in Medicine (AIUM), which required
"important and unexpected" ultrasound results to be "directly" communicated
"by the interpreting physician [to] the patient's health care provider.
Communication by phone or in-person is preferred to allow verification of the
receipt and discussion and should occur in a timely manner." Defendant and
both parties' experts are AIUM members.

A-2611-18T1
9
delivery on March 26 or 27, 2008, before she sustained permanent hypoxic

oxygen-deprivation brain damage. Kylie did not suffer from GALD.

Defendant's Experts

According to defendant's experts, the IUGR on March 22 and 30, 2008,

was barely below ten percent, was not significant, and did not cause any brain

damage; instead, the brain damage was caused by GALD. Kylie's perfect eight

out of eight BPP score on March 22, 2008, proved she had not suffered brain

damage and was good for seven days. Although recommended by defendant at

thirty-four weeks in this twin pregnancy, interim surveillance by NST was not

required. Defendant's repeat of BPP in eight days on March 30, 2008,

constituted good medical practice. Since Kylie had neither suffered brain

damage in utero nor acute hypoxia at birth based on negative cord blood testing,

nothing defendant did or failed to do was a substantial factor in causing her brain

damage or increasing the risk of her sustaining such damage. Instead,

defendant's experts opined that GALD caused Kylie's in utero IUGR and her

post-birth liver failure, which led to multi-organ failure and two cardiac arrests

on day-five to day-six of life, and that alone caused her brain damage.

A-2611-18T1
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 Trial

Counsel for the parties delivered their opening statements on September

27, 2018. Over the next week, plaintiffs presented the testimony of almost all

of their witnesses; however, before plaintiffs completed their case, defendant's

designated trial counsel, Michael Keating (Mr. Keating), was hospitalized in a

neurological intensive care unit, on the evening of Friday, October 5, 2018, with

a diagnosis of ischemic stroke. Mr. Keating's condition was successfully

treated, and he was discharged from the hospital on Sunday afternoon. Since

the next day was a court holiday, Mr. Keating contacted the trial judge and

plaintiffs' counsel to inform them of these developments.

On Tuesday, October 9, 2018, after three hours of in-chamber discussions,

Mr. Keating requested a mistrial, stating, "My client doesn't feel comfortable

with me continuing to represent him under the circumstances." However, Mr.

Keating did not state he was medically unable to continue.

At the onset, the trial judge expressed her concerns regarding the fairest

decision for all parties. She explained that plaintiffs had presented their entire

case except for one remaining expert, the jury had invested two weeks of their

time, and if she ordered a mistrial, defendant would gain an "unfair advantage."

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The judge requested Mr. Keating provide "proof from a doctor, your

neurologist . . . that you cannot go forward."

When the trial judge allowed defendant to state his reasons for wanting a

mistrial on the record, he confirmed that one alternative to an immediate mistrial

had already been discussed with him the day before: "In fact [Mr. Keating]

expressed to me that one option was to request . . . a postponement of the trial

for one week to see how and if he could get better." Nevertheless, defendant

said he felt Mr. Keating "was now impaired," and expressed concern that he

could "suffer another setback of the same type that he had Friday night during

the remainder of the trial." 11

After explaining to defendant that granting a mistrial is "the last resort,"

if there is no lesser way to "save all the work that's been done," the judge

addressed Mr. Keating:

Obviously[,] you were able to come to court today.
You talked about having to go to court in another
county. You spoke sensibly to me at length yesterday
and sensibly at length today. . . . I see no measurable
difference in you today than . . . the way you've been
the last couple of weeks. But I'm not a doctor.

11
The trial judge explained her reason for allowing defendant to address her
directly, "I note Dr. Frisoli, when I passed through the courtroom, indicated to
me that he would like to speak to me. And I . . . said that would be when we
went on the record, he could address me."

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In addition, Mr. Keating also had in court that day his pediatric neurology

expert, David Mandelbaum, M.D., who came from Rhode Island.

Following an extensive discussion, the trial judge did not rule on

defendant's request for a mistrial; instead, she adopted a "try and see" approach,

first seeing if Mr. Keating wanted to present the testimony of Dr. Mandelbaum

out of turn,12 since he had come to court from out-of-state and was ready to

testify. While emphasizing she did not "want to stress [Mr. Keating] unduly,"

the judge suggested Mr. Keating consider "starting [Dr.] Mandelbaum. It would

be great because this jury has been sitting here all day and so has [Dr.]

Mandelbaum. And . . . [you could] get his credentials and get his opinion[s] . . . ."

Mr. Keating responded, "I don't know. I mean, if I'm told I have to do it, I have

to do it." He then appeared to acknowledge the merit of starting Dr.

Mandelbaum's testimony by stating, "You know, part of the problem is it's not

easy to get these witnesses in[,]" and noting the "practical matter" that he comes

"from Rhode Island."

The judge did not tell Mr. Keating he had to proceed with Dr.

Mandelbaum; instead, after again noting that Dr. Mandelbaum had been there

12
At that point, plaintiffs' counsel had already begun the testimony of his next -
to-last witness, Kylie's father.
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all morning, she replied, "So we could try to do that." Mr. Keating did not object

to the judge's proposed plan. After lunch, Dr. Mandelbaum's entire testimony

was completed, notwithstanding the judge's offer to stop after his qualifications,

or at any other point, if Mr. Keating requested. Dr. Mandelbaum opined that

GALD caused Kylie's brain damage and related injuries. In addition, he testified

that in studies of children with similar injuries, "more than half will die by age

[nineteen]" and "fewer than half will live to age [thirty]."

The next day, October 10, 2018, Russell Hewit (Mr. Hewit), a senior

partner from Mr. Keating's law firm, appeared at trial, along with Mr. Keating.

Mr. Hewit informed the judge that Mr. Keating had symptoms of a stroke and

needed "one to three" weeks of recovery and "two to three" weeks without any

stressful setting. 13 For these reasons, he renewed defendant's motion for a

mistrial.

13
Mr. Hewit did not present any supporting medical documentation at the time
of his application. Just before noon, and after the judge ruled, Mr. Hewit
presented a brief letter from John Hanna, M.D., the treating physician for Mr.
Keating. After describing the successful treatment Mr. Keating received, Dr.
Hanna provided the following assessment:

While the prognosis for a full recovery for Mr. Keating
is excellent and he is now functional and not in distress,
he will not have fully recovered from the temporary
ischemic trauma to his brain during the immediate

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 After extended discussions, both in chambers and on the record, the judge

explained the need to explore lesser alternatives to a mistrial. Addressing Mr.

Hewit, she stated,

You've offered no solution, nothing that can change
this, just give it a mistrial. You haven't even said to me,
'Judge can we do this in two weeks?'

I believed Mr. Keating the minute he called me and
none of this has to do with any disbelief of anything,
any representation that he would make to me. It has to
do with the draconian approach of after three weeks [–]
all the time, effort and money spent, emotional cost,
monetary costs, court time, everything [–] 'Judge, grant
a mistrial, okay?'

At that point, the judge denied defendant's motion for a mistrial, without

prejudice. Instead, after allowing plaintiffs' counsel to complete the testimony

of Kylie's father (which took less than twenty-five minutes) and allowing

plaintiffs' counsel to play the videotape testimony of his causation expert, the

recovery period, generally one to three weeks assuming
no further symptoms. For the next two to three weeks,
Mr. Keating should not be in any stressful setting and
should not participate in any trials in court.

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judge continued the trial until October 22 14 to allow time for Mr. Keating to rest

and recover.15

After the trial judge confirmed she was denying defendant's mistrial

application without prejudice, Mr. Hewit advised that "we will inquire of the

doctors, if there is a reasonable time," if the case were adjourned "for a week or

ten days, if that would make a difference and I will make that inquiry of the

physicians." It appears that Mr. Hewit made this statement in response to the

judge's suggestion of an extended postponement to allow Mr. Keating time to

recover.16

The transcript for the afternoon of October 10, 2018 indicates the judge

had a further, in-chambers discussion with trial counsel during the luncheon

recess regarding Mr. Keating's condition. This occurred after Mr. Hewit

14
The judge later changed this date until October 23.
15
Notwithstanding this accommodation, because defendant's liability expert,
Arnold Cohen, M.D., was leaving town before then, Mr. Keating requested his
testimony be taken on Wednesday, October 17.
16
Notwithstanding this representation, neither Mr. Hewit nor Mr. Keating
provided the judge with any further information from Mr. Keating's doctors
before the jury returned its verdict. Nor did Mr. Keating inform the judge he
was having any difficulty in completing the trial.

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presented the report of Dr. Hanna. Following that discussion, the judge

announced the following plan:

So here's what I've decided in consultation with Mr.
Keating and [plaintiffs' counsel]. . . . I'm going to ask
this jury if they would come back in two weeks and I
think - - I hope Mr. Keating would be better. . .

....

And I have come to this conclusion because of the frank
discussion that I was able to have in chambers with Mr.
Keating, who I know is frank and candid with me about
what's going on and I respect that.

At that point, Mr. Keating presented the video of the de bene esse

testimony of his causation expert, Joel Lavine, M.D., an expert in pediatric

gastroenterology and pediatric liver diseases. At the completion of the video,

the trial judge explained to the jurors that due to "issues with availability," they

would return in one week, on October 17, to hear the testimony of defendant's

last expert, Dr. Cohen. After that, they would return the following week, on

October 23, to hear summations, receive jury instructions, and then delib erate.

Jury Charge and Verdict Sheet

Prior to charging the jury, the judge and trial counsel discussed the jury

charges together and came to an agreement regarding how the judge would

charge the jury. They also worked together to tailor the jury verdict sheet to the

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complex facts of this case. No objections were made to the charge or the verdict

sheet.

Relevant to this appeal, the judge provided the following instruction, in

pertinent part, regarding the verdict sheet:

[W]e call this a Scafidi17 charge. . . . So the first thing,
when you're looking at the verdict sheet . . . [d]id the
plaintiff prove by a preponderance of the credible
evidence that the defendant, Dr. Frisoli, deviated from
accepted standards of medical practice. You have a
choice, and your answer is yes or no. . . . If yes, go to
question [number two]. Did Dr. Frisoli's deviation
from the accepted standard of medical practice increase
the risk of harm posed by [Maria's] preexisting
conditions? Okay and the answer is yes or no. That's
the increased risk of harm, that Scafidi charge I was just
talking to you about. If yes, go to question [number
three]. Was the increased risk a substantial factor in
producing the ultimate injury? Yes or no. But of
course, if the answer is no, you cease deliberations and
return your verdict. 18

After deliberating, the jury returned an inconsistent verdict. Initially, the

jury answered "yes" to question number one on the verdict sheet – that defendant

17
Scafidi v. Seiler, 119 N.J. 93, 108 (1990) (holding that a modified standard
of causation governs cases in which a defendant's alleged malpractice is deemed
to have increased the risk of harm from a preexisting condition).
18
In contrast to the judge's correct instruction, the jury verdict sheet mistakenly
omitted the direction, "if the answer is no, . . . cease deliberations and return
your verdict," that should have followed question three.

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had deviated from the standard of care – and "yes" to question number two –

that the deviation increased the risk of harm posed by the preexisting condition.

However, the jury returned an inconsistent verdict, finding that neither the

increased risk caused by defendant's negligence, nor the increased risk caused

by Dr. Alam's negligence, was a substantial factor in producing Kylie's ultimate

injury.

Under question number three, 19 the "substantial factor" question

addressing defendant, the verdict sheet incorrectly advised the jury to proceed

to question number four, without regard to whether the jury found defendant's

deviation a substantial factor in causing plaintiffs' damages. Consistent with the

jury verdict sheet instructions, the jury continued to deliberate, and proceeded

to find both doctors liable, and awarded $20,000,000 in total damages. The jury

found that sixty percent of Kylie's "ultimate injury" resulted from Dr. Alam's

deviation from the standard of care and the remaining forty percent resulted from

defendant's deviation from the standard of care.

When the jury foreperson reported the jury's responses to the questions on

the verdict sheet, the error in the verdict sheet quickly became apparent to the

19
Question number six posed the "substantial factor" question regarding Dr.
Alam's deviation from the standard of care. The jury answered that question "no"
as well.
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trial judge and counsel. The judge acknowledged that if the jury answered no

to question number three, then the interrogatories should have instructed the jury

to cease deliberations. The judge explained the inconsistency to the jury:

I don't want to discuss your verdict with you, but you
might remember that I told you . . . if the deviation was
not a substantial factor in producing the ultimate injury,
then you don't recover against Dr. Frisoli or against Dr.
Alam if you found . . . the same findings for him, too. Did
Dr. Alam's deviation increase the risk of harm posed by
[Maria's] preexisting condition[?] ["]Yes, you said.["]
Was the ultimate injury? ["]No[,] you said.["] So you
didn't find the three predicates in order to say what portion
of the ultimate injury is a result of [Dr.]Frisoli or a result
of [Dr.] Alam, because you found that neither was a
substantial factor, which would lead you to believe that
you would come to a different conclusion. But then when
we came down to[,'D]id Dr. Frisoli prove that some
portion of Kylie Tapia's ultimate injury was a result of
the . . . preexisting condition[?'], you said, ["N]o.["] So
you would find that she didn't have any preexisting
condition.

In response to the obvious confusion, the judge proceeded to reinstruct the

jury on proximate cause. There were no objections to the judge's further

instructions. The parties also agreed the judge would provide a corrected verdict

sheet to the jurors that informed them to cease deliberation after question

number three, if they found defendant was not a substantial factor in causing the

ultimate injury.

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 After further deliberations, the jury returned a second verdict, changing

its answers to questions three and six from "no" to "yes," indicating the

deviations of defendant and Dr. Alam did constitute a substantial factor in

producing Kylie's ultimate injury. The jury also returned a revised liability

apportionment, increasing Dr. Alam's liability to seventy percent and reducing

defendant's to thirty percent. The total amount of damages awarded remained

unchanged at $20,000,000.

Post-Trial Motions

On November 13, 2018, Mr. Hewit filed two post-trial applications for

defendant, a motion to supplement the record and a motion for a new trial. The

trial judge denied both motions.

In the motion to supplement the record, defendant sought leave to admit

an October 30 certification from Dr. Hanna and an undated certification from

defendant. In his certification, Dr. Hanna described a follow-up neurological

exam he completed on October 16, where Mr. Keating "presented with

complaints of continuing numbness and tingling sensation." Dr. Hanna stated

that while Mr. Keating "would appear functional, he was not functioning at his

full capacity" and "would not be expected to be functioning at full intellectual

capacity for another several weeks." He added that Mr. Keating should avoid

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21
"any stressful setting and should not participate in any trials in court until after

Thanksgiving . . . ." Dr. Hanna added that he scheduled Mr. Keating "for follow

up in [six] months."

In his undated certification, defendant said he observed Mr. Keating on

October 17, 23, and 24, and concluded he "was not functioning at his normal

level[,] [he] was not as quick thinking, his speech was slow, his affect was flat,

he would only speak in simple sentences, he could not move from one t opic to

another, was slower in grasping conversation and responding on conversation,

and lacked energy." Defendant did not provide an explanation for not raising

his concerns with the trial judge, as he did on October 9.

Mr. Keating also submitted a certification, stating he "continued to have

symptoms, including numbing and tingling in [his] left arm and weakness on the

left side of [his face], lack of energy, fatigue and inability to concentrate[,]

which negatively affected [his] ability to prepare for trial . . . ." Mr. Keating did

not provide an explanation for his failure to share this information with the trial

judge.

Addressing the motion to supplement the record, the trial judge recalled

receiving a call on Columbus Day from a retired judge urging her to speak with

Mr. Keating:

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22
 I spoke to [Mr. Keating] briefly. He told [me] what had
happened. That he was out of the hospital. I said are
you able to continue? He said I think I am but my client
doesn't want me to. . . . The next day Mr. Keating was
here. He indicated he was prepared to go forward. He
went forward. He did his usual excellent job with the
witness.

The next day Mr. Hewit appeared [and] [a]sked for a
mistrial.

....

We . . . were at a juncture in the case where . . . almost
the entirety of the [plaintiffs'] case had been put in . . .
[and] some of the defense case [was] in.

....

I spoke with Mr. Keating and [plaintiffs' counsel] in
chambers, because I really wanted to hear from Mr.
Keating himself. And all I needed was Mr. Keating to
say I can't go forward . . . .

In addition, the judge recounted that, before Dr. Cohen testified on

October 17, she checked to make sure that Mr. Keating was ready to proceed,

When . . . we returned to [c]ourt [for] the last
witness . . . eight days later[,] I came to [c]ourt not
knowing what was going to happen that day.
Whether . . . the application for a mistrial would be
renewed, or whether Mr. Keating would tell me that he
was worse, or not fee[l]ing well, or couldn't go forward.
I had no idea, but I was prepared to listen to anything.

And the first thing I said to Mr. Keating was, '[H]ow
[are] you doing? He said okay. I said are we going

A-2611-18T1
23
 forward? He said yes.['] I saw [his] witness in the
courtroom.

So nobody had contacted me during that period of time
to let me know that anything was wrong. . . . It was not
a fait accompli that we were going forward that day. I
didn't know what was going to happen.

I was pleased and relieved to see that Mr. Keating was
here, appearing well, and ready to go forward with his
witness in the courtroom and so we did. And he did an
excellent job, as usual, in his direct examination of that
witness.

The judge denied the motion to supplement the record, explaining "there

is no basis to expand the record. And to suggest that I should consider materials

that were not available to me to say my decision to deny a mistrial on October

10th was incorrect . . . is wholly without merit."

Turning to the recharge, the judge explained that she had "the choice of

trying to weed through whether or not [the jury] wanted to award [six] million

to [plaintiff] and her family or whether they did not." She believed it was clear

the jury wanted to award a sum of money, but the jury was confused on the

substantial factor questions. She denied the motion for a new trial , explaining,

I think the charge was accurate. I think the decision I
made was the only decision to be made and I handled it
in consultation with experienced counsel, with their
advice and consent in terms of what was to be charged
when I sent them back in. It was an intelligent jury. . . .
And I think this is what they intended to do. They

A-2611-18T1
24
 intended to find [defendant] [thirty] percent responsible
for Kylie's [] injuries and they intended to award the
amount of money they awarded.

On January 31, 2019, the trial judge entered an Order for Judgment against

defendant in the amount of $6,599,625.34. This figure consisted of $6,000,000

(defendant's thirty percent share of the $20 million damage award), plus his

proportionate share of stipulated medical bills, prejudgment interest, and offer

of judgment penalties.

This appeal followed. Defendant presents the following points of

argument for our consideration:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
DEFENDANT'S APPLICATIONS FOR A MISTRIAL DUE TO TRIAL
COUNSEL'S MID-TRIAL STROKE, THEREBY DEPRIVING DR.
FRISOLI OF HIS FUNDAMENTAL RIGHT TO A FAIR TRIAL AND
RESULTING IN A MANIFEST INJUSTICE TO HIM.

POINT II

THE TRIAL COURT ERRED IN FAILING TO ALLOW DEFENDANT
TO SUPPLEMENT THE RECORD CONCERNING TRIAL
COUNSEL'S IMPAIRMENT AND CONSEQUENTLY DENIED
DEFENDANT'S MOTION FOR A NEW TRIAL, RESULTING IN A
MISCARRIAGE OF JUSTICE.

POINT III

THE TRIAL COURT'S INITIAL JURY CHARGE, WHICH
INCORPORATED AN ERRONEOUS VERDICT SHEET, WAS

A-2611-18T1
25
 IMPROPER AND CLEARLY CAPABLE OF PRODUCING AN
UNJUST RESULT.

POINT IV

THE TRIAL COURT ERRED IN FAILING TO ACCEPT THE JURY'S
FIRST VERDICT WHICH, BUT FOR THE ERRONEOUS VERDICT
SHEET, WOULD HAVE RESULTED IN A JUDGMENT OF "NO
CAUSE" OF ACTION IN FAVOR OF DEFENDANT.

POINT V

THE TRIAL COURT'S RE-CHARGE EMPHASIZED PLAINTIFF'S
VERSION OF PROXIMATE CAUSE, IMPROPERLY SUGGESTED
THE FIRST VERDICT WAS ERRONEOUS AND RESULTED IN A
VERDICT THAT WAS AGAINST THE WEIGHT OF THE
EVIDENCE.

POINT VI

THE TRIAL COURT IMPROPERLY EMPHASIZED PLAINTIFFS'
VERSION OF LIFE EXPECTANCY AND DAMAGES,
THEREBYRELIEVING THEM OF THEIR BURDEN OF PROVING
REASONABLY PROBABLE FUTURE DAMAGES.

POINT VII

THE CUMULATIVE ERRORS OF THE TRIAL COURT DEPRIVED
DEFENDANT A FAIR TRIAL AND WERE CLEARLY CAPABLE OF
PRODUCING THIS UNJUST RESULT IN THE FORM OF A
MULTIMILLION JUDGMENT AGAINST DEFENDANT.

We have considered these arguments after carefully reviewing the

extensive trial record. Finding no basis to reverse the denial of defendant's post-

trial motions, we affirm those rulings substantially for the reasons stated by

A-2611-18T1
26
Judge Camille M. Kenny in the oral opinions she delivered on January 7 and 9,

2016. In addition, contrary to defendant's arguments, we conclude the judge did

not err in failing to accept the jury's initial verdict, the liability verdict was not

against the weight of the evidence, and the verdict was not a miscarriage of

justice. See R. 4:37-2(b); R. 4:49-1(a); Dolson v. Anastasia, 55 N.J. 2, 5-7

(1969); Dolan v. Sea Transfer Corp., 398 N.J. Super. 313, 329-30 (App. Div.

2008). We further conclude that none of defendant's remaining arguments

warrant disturbing the verdict.

II

"New Jersey courts apply the substantial factor test in medical malpractice

cases involving preexisting conditions." Reynolds v. Gonzalez, 172 N.J. 266,

280 (2002). There are three inquiries relevant to the liability of the defendant

doctors in diagnosing and treating preexisting conditions: 1) whether one or

more of defendants deviated from the standard of care in failing to diagnose or

rendering treatment; 2) whether, within a reasonable degree of medical

probability, their negligence increased the risk or lessened the chance of

avoiding the harm threatened by the preexisting condition; and 3) whether the

increased risk of or lost chance to avoid the harm posed was a substantial factor

in bringing about the harm. See id. at 282-83, 287-88.

A-2611-18T1
27
 Where preexisting conditions are at issue, a defendant's deviation "need

not be the only cause, nor a primary cause, to be a substantial factor in producing

the ultimate result." Reynolds, 172 N.J. at 288. It is enough that it is a

"substantial factor," one which is neither remote nor inconsequential and plays

a "role that is both relevant and significant." Ibid.

In reviewing an order on a motion for a new trial, "[t]he trial court's ruling

on such a motion shall not be reversed unless it clearly appears that there was a

miscarriage of justice under the law." R. 2:10-1. An appellate court must give

due deference to the trial court's "feel of the case[,]" that is, its regard for "the

jury to pass upon the credibility of the witnesses" and whether "it clearly and

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

Carrino v. Novotny, 78 N.J. 355, 361 (1979) (quoting R. 4:49-1(a)); see also

Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson, 55 N.J. at 7

(holding that in reviewing the trial court's denial of a motion for a new trial, "the

appellate court must give deference to the views of the trial judge . . . ."). Jury

verdicts should be cast aside in favor of a new trial sparingly and only to prevent

a clear injustice. Caicedo v. Caicedo, 439 N.J. Super. 615, 628-29 (App. Div.

2015).

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28
 "The grant of a mistrial is an extraordinary remedy that should be

exercised only to prevent manifest injustice." Belmont Condo. Ass'n, Inc. v.

Geibel, 432 N.J. Super. 52, 97 (App. Div. 2013) (citing State v. Ribalta, 277 N.J.

Super. 277, 291 (App. Div. 1994)). "An appellate court should not reverse a

trial court's denial of a mistrial motion absent a clear showing . . . [of] actual

harm or that the court otherwise abused its discretion." State v. Yough, 208 N.J.

385, 397 (2011) (internal quotations omitted).

III

We begin by addressing defendant's argument that the judge abused her

discretion in denying his motions for a mistrial. He asserts the judge

"underestimated Mr. Keating's neurological impairment, which was not

obvious . . . to a lay person." Additionally, he argues the judge focused

inordinate attention on other considerations, rather than his right to a fair trial.

In response to the mistrial motion defendant made on October 9, the judge

took note of all the time, effort, and money already expended in this substantially

tried case, and explained that granting a mistrial is "the last resort." She also

appropriately noted that Mr. Keating was "able to come to court" and "talked

about having to go to court in another county." She further recounted that Mr.

Keating "spoke sensibly to me at length yesterday and sensibly at length today."

A-2611-18T1
29
While acknowledging she is "not a doctor," she noted the absence of any medical

documentation to support the application.

Based on the record before her, the judge reasonably exercised her

discretion by deferring a formal decision on the mistrial application, particularly

in the absence of any supporting medical documentation. Instead, the judge

reasonably proceeded with a "try and see" approach, inquiring about the

possibility of Mr. Keating presenting the testimony of his out-of-state liability

expert, who was in court and ready to testify, and allowing plaintiffs to finish

their case by completing the testimony of Kylie's father and playing a de bene

esse videotape of their final expert. Mr. Keating did not object to the judge's

proposed plan.

The next day, October 10, 2017, Mr. Hewit appeared – not in place of Mr.

Keating, but with him – and made a second mistrial application. The judge did

decide this motion and denied it, but without prejudice. In making this decision,

the judge balanced numerous factors. She considered that plaintiffs had

presented almost their entire case, which would involve significant costs to re-

litigate, the jury had been at trial for two weeks, and a mistrial would provide

defense counsel with an unfair advantage because they had an opportunity to

A-2611-18T1
30
hear the testimony of plaintiffs' experts. The judge also noted the continued

absence of any supporting evidence regarding Mr. Keating's medical condition.

After allowing plaintiffs to finish the testimony of one witness and

present a final expert on video, the judge attempted to accommodate Mr.

Keating's condition by delaying the trial for almost two weeks. Just before noon,

Mr. Hewit presented a report from Dr. Hanna advising that Mr. Keating needed

one to three weeks to recover. After receiving this report, and discussing the

matter in chambers with trial counsel, the judge announced a two-week

postponement of the trial, a postponement which fell within the two- to three-

week time frame identified by Dr. Hanna. The judge explained that she came to

her decision "because of the frank discussion" she had "in chambers with Mr.

Keating." The judge was prepared to declare a mistrial if that result was

indicated, as she later explained, "[A]ll I needed was Mr. Keating to say I can’t

go forward . . . ."

During the next two weeks, Mr. Keating presented no further

documentation concerning his medical condition, nor did he advise the judge

that he could not continue, or otherwise renew the mistrial motion. The judge

concluded that putting the case off for two weeks, absent further information or

A-2611-18T1
31
developments, was sufficient to preserve a fair trial, and her decision is entitled

to deference.

We are satisfied the judge's decision to deny defendant's mistrial motion

without prejudice did not amount to an abuse of discretion. State v. Jackson,

211 N.J. 394, 407 (2012). Defendant has not shown it would be "in the interests

of justice" to reverse the judge's decision, based upon information that was not

provided to her. R. 2:10-2. The record contains no credible explanation why

the information contained in the certifications submitted by defendant in support

of his post-trial motions was not made known to the trial judge before the trial

continued with Dr. Cohen's testimony on October 17. The October 30

certification of Dr. Hanna was based on the October 16 office visit, where Mr.

Keating "presented with complaints of continuing numbness and tingling

sensation." These symptoms, and the results of a further examination of Mr.

Keating, caused Dr. Hanna to conclude, "Mr. Keating should not be in any

stressful setting and should not participate in any trials in court until after

Thanksgiving . . . ." 20

20
Of note, Dr. Hanna's report lists no positive cognitive impairment findings
on exam from either Mr. Keating's hospital admission or his October 16 office
visit. In addition, our review of the record of October 9, 2018, and thereafter,
did not reveal any difficulties encountered by Mr. Keating in defending the case.
A-2611-18T1
32
 If defendant had an objection to the trial continuing, that objection should

have been made known to the trial judge, before Dr. Cohen's testimony, and

certainly before summations. Instead, before Dr. Cohen's testimony, Mr.

Keating assured the judge he was "okay" and ready to go forward. A party

should not be permitted to take a chance on a verdict by one jury and then

complain if the verdict is unfavorable. Lamanna v. Proformance Ins. Co., 364

N.J. Super. 473, 476 (App. Div. 2003), aff'd, 184 N.J. 214, 222-23 (2005). "'To

do so would condone a tactic of . . . awaiting the outcome, and then raising the

issue on appeal when the outcome is unfavorable.'" Id. at 477-78 (quoting

Walder, Sondak, Berkeley, & Brogan v. Lipari, 300 N.J. Super. 67, 82 (App.

Div. 1997)). Those concerns are heightened here, where the trial judge received

direct confirmation from Mr. Keating that he was able and ready to proceed.

Absent plain error, of which we find none, defendant is not entitled to relief

from the consequences of chosen trial strategies. See T.L. v. Goldberg, 238 N.J.

218, 232 (2019).

Defendant further argues that Rule 4:25-4 applies to this case because, on

Wednesday, October 9, the trial judge inquired as to whether another attorney

in Mr. Keating's "very competent firm" might be able to complete the direct

A-2611-18T1
33
testimony of Dr. Cohen, the only remaining defense witness at that point. After

Mr. Keating replied, "I don't think so," the judge did not raise the issue again.

R. 4:25-4 provides:

Counsel shall, either in the first pleading or in a writing
filed no later than ten days after the expiration of the
discovery period, notify the court that designated
counsel is to try the case, and set forth the name
specifically. If there has been no such notification to
the court, the right to designate trial counsel shall be
deemed waived. No change in such designated counsel
shall be made without leave of court if such change will
interfere with the trial schedule . . .

The purpose of Rule 4:25-4 is to protect attorneys and their clients from

trial courts compelling them to substitute a partner or associate for an

unavailable attorney and to proceed to trial, even if the partner or associate was

unfamiliar with the file or inexperienced in the area of practice. See Harmon

Cove II Condo. Ass'n Inc. v. Hartz Mountain Indus., 258 N.J. Super. 519, 522

(1992) (granting an adjournment based on R. 4:25-4 where the designated trial

attorney was committed to another trial).

Here, Mr. Keating was not unavailable because of another trial nor did the

judge force another attorney from Mr. Keating's firm to continue the trial. After

a two-week delay in the trial, Mr. Keating appeared and did not move for a

mistrial, nor did he indicate any inability to complete the trial. Thus, we find

A-2611-18T1
34
this argument clearly lacks substantive merit because the judge did not require

another attorney to continue the case in place of Mr. Keating.

Defendant further argues the trial judge erred when she denied his motion

to supplement the record with evidence regarding his ischemic stroke, which the

judge should have considered when deciding his motion for a new trial.

Defendant sought to admit an October 30 report from Dr. Hanna, based on a

follow up evaluation performed on October 16, which indicated Mr. Keating

continued to have physical symptoms. The updated report concluded that while

Mr. Keating "would appear functional, he was not functioning at his full

capacity" and "would not be expected to be functioning at full intellectual

capacity for another several weeks." Defendant argues that Rule 4:49(a) and

Rule 1:1-2 permit the supplementation of the record in this instance.

R. 4:49-1(a) provides:

On a motion for a new trial in an action tried without a
jury, the trial judge may open the judgment if one has
been entered, take additional testimony, amend
findings of fact and conclusions of law or make new
findings and conclusions, and direct the entry of a new
judgment. The trial judge shall grant the motion if,
having given due regard to the opportunity of the jury
to pass upon the credibility of the witnesses, it clearly
and convincingly appears that there was a miscarriage
of justice under the law. (Emphasis added.)

A-2611-18T1
35
 Rule 1:1-2 provides that the Rules of Court "shall be construed to secure

a just determination, simplicity in procedure, fairness in administration and the

elimination of unjustifiable expense and delay." It further provides that,

"[u]nless otherwise stated, any rule may be relaxed or dispensed with by the

court in which the action is pending if adherence to it would result in an

injustice." Ibid. "[T]he relaxation provision [of Rule 1:1-2] should be sparingly

resorted to, particularly when a reasonable interpretation of the complex of

directly applicable rules meets the problem at hand." Pressler & Verniero,

Current N.J. Court Rules, comment 2 to Rule 1:1-2 (2021). "Determining

whether relaxation is appropriate . . . requires an examination and balancing o f

the interests that are at stake." State v. Williams, 184 N.J. 432, 443 (2004).

Defendant's argument pursuant to Rule 4:49-1(a) is misplaced because it

applies to bench trials. Turning to Rule 1:1-2, we discern no basis for permitting

a post-verdict supplementation of the trial record with information that could

have been provided before the jury rendered its verdict. The trial judge made a

rational decision based on the information she had at the time of the mistrial

motions. She appropriately balanced all the interests at stake and came to a

reasonable conclusion to continue the trial for two weeks, in the reasonable

expectation that the postponement would fairly accommodate everyone's

A-2611-18T1
36
interests. The judge appropriately considered the enormous expense involved if

she granted a mistrial and the fact that defendant would gain an advantage by

having seen essentially plaintiffs' entire case. The judge, who denied

defendant's mistrial motion without prejudice, reasonably expected that she

would be informed if Mr. Keating's condition did not allow him to complete the

trial, after the extended postponement. We are satisfied that rejection of the

requested relaxation of the rules did not create an injustice.

Defendant argues for the first time on appeal that the original jury charge

"was improper and clearly capable of producing an unjust result." Additionally,

defendant asserts the verdict sheet was improper based on "the absence of the

instruction after question [number three] to cease deliberations if the jury found

the increased risk of harm from Dr. Frisoli's deviation from the standard of care

was not a substantial factor in producing the ultimate injury . . ." which would

have resulted in a no cause.

When a defendant fails to object to a jury charge at trial, we review for

plain error, and "disregard any alleged error 'unless it is of such a nature as to

have been clearly capable of producing an unjust result.'" State v. Funderburg,

225 N.J. 66, 79 (2016) (quoting R. 2:10-2). Plain error, in the context of a jury

charge, is "[l]egal impropriety in the charge prejudicially affecting the

A-2611-18T1
37
substantial rights of the defendant and sufficiently grievous to justify notice by

the reviewing court and to convince the court that of itself the error possessed a

clear capacity to bring about an unjust result." State v. Camacho, 218 N.J. 533,

554 (2014) (alteration in original) (quoting State v. Adams, 194 N.J. 186, 207

(2008)).

When reviewing any claim of error relating to a jury charge, "[t]he charge

must be read as a whole in determining whether there was any error[,]" State v.

Torres, 183 N.J. 554, 564 (2005), and the effect of any error must be considered

"in light 'of the overall strength of the State's case.'" State v. Walker, 203 N.J.

73, 90 (2010) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). These jury

charges must provide a "comprehensible explanation of the questions that the

jury must determine, including the law of the case applicable to the facts that

the jury may find." Dubak v. Burdette Tomlin Mem'l Hosp., 233 N.J. Super.

441, 456 (App. Div. 1989) (quoting State v. Green, 86 N.J. 281, 287-88).

However, an attorney's failure to object to jury instructions not only "gives rise

to a presumption that he did not view [the charge] as prejudicial to his client's

case[,]" State v. McGraw, 129 N.J. 68, 80 (1992), but is also "considered a

waiver to object to the instruction on appeal." State v. Maloney, 216 N.J. 91,

104 (2013).

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38
 The record reflects the trial judge carefully tailored the Model Civil Jury

Charges to the specific facts of the case. We discern no error or prejudice that

resulted from the judge's instructions.

The judge and counsel created the jury verdict sheet, again tailored to the

specific issues presented by the case. Unfortunately, at some point in working

on the verdict sheet, the instruction that should have followed question three

("if the answer is no, . . . cease deliberations and return your verdict") was

mistakenly omitted.

Notwithstanding the error in the jury verdict sheet, the judge instructed

multiple times that if the jury found defendant was negligent and increased the

risk of Kylie's brain damage, but that the impact of that increased risk was

inconsequential and was not a substantial factor in causing that brain damage,

then the jury should stop their deliberations and not apportion liability or award

damages. The judge explained to the jury the two conflicting theories on

causation and reviewed the Scafidi factors. Additionally, when the judge

explained the verdict sheet to the jury, she did in fact advise the jury to stop after

question number three if the jury found defendant was not a substantial factor in

causing Kylie's injuries. Thus, since the jury returned a verdict with an

A-2611-18T1
39
inconsistent result, due to the mistake on the initial verdict sheet, we find no

error in the jury charge.

Defendant contends the trial judge committed error when she rejected the

jury's initial verdict as inconsistent. We disagree. A jury's verdict may be

considered inconsistent if "there is no ready, logical or practical manner" in

which different parts of the verdict "can be reconciled." JMB Enters. v. Atl.

Emp'rs Ins. Co., 228 N.J. Super. 610, 616 (App. Div. 1988) (citations omitted).

The record here fully supports the trial judge's determination that the jury's

initial verdict constituted an inconsistent verdict. 21

In Mahoney v. Podolnick, 168 N.J. 202 (2001), our Supreme Court

reviewed a jury medical malpractice verdict against two defendant doctors.

During trial, the jury found both defendants negligent and that their negligence

was a proximate cause of the plaintiff's loss of chance. Id. at 205. The jury

awarded the plaintiff $700,000 in damages and the defendant moved for a

judgment notwithstanding the verdict or a new trial. Ibid. The trial judge

21
Once the jury rejected defendant's contention that GALD caused Kylie's
injuries, and found that defendant and Dr. Alam were both negligent and that
their negligence increased the risk of harm posed by Kylie's IUGR, then the jury
had to accept plaintiffs' theory of the case – that non-stress testing was urgently
indicated on March 26, and would have resulted in a C-section delivery before
Kylie sustained permanent brain damage from hypoxia.
A-2611-18T1
40
vacated the verdict. On the retrial, the jury entered a no cause verdict. The

plaintiff's appealed, attempting to reinstate the first verdict. We upheld the trial

court's initial verdict, but the Supreme Court reversed. Id. at 206.

At the conclusion of the first trial, the jury returned an inconsistent

verdict. The jury answered no to the substantial factor proximate cause

question, but apportioned a percentage to that defendant. Id. at 210-11. The

trial judge compared the jury's no vote on question three with the apportionment

of liability set forth in question number seven and told the jury:

[T]here's an inconsistency in the verdict. In number
seven you attributed a percentage to Dr. Podolnick, and
if you remember I told you, if it's not in the instructions,
not written in the instruction, that you could assess a
percentage on that question only if you had answered
yes to all three in each grouping, that is, one, two and
three about Dr. Podolnick or four, five and six for Dr.
Landset. So you allocated 15 percent to Dr. Podolnick
on the one hand while--on the one hand by virtue of
your answer to question number three you determined
that Dr. Podolnick was not responsible for reducing
Elaine Brown's increased life expectancy, but then on
the other hand on seven B you allocated a percentage
of responsibility for that, so those two are inconsistent,
so you can't do it that way.

[Id. at 211.]

The trial judge sent the jury back for further deliberations, instructing

them either to eliminate the percentage assigned to that doctor or to reconsider

A-2611-18T1
41
their finding with respect to whether that defendant was a substantial factor in

causing the plaintiff's harm. As a result, the jury changed its response to the

substantial factor question. The Supreme Court concluded,

After being told that the jury verdict was inconsistent,
the trial court instructed the jury that it either could
change the allocation of percentages on question seven
or, alternatively, change its answer to question three.
The jury followed the court's instruction and returned
with a new verdict that corrected the response to
question three. Even though the jury's original verdict
was inconsistent, the trial court appropriately
reinstructed and resubmitted the questions to the jury
"to assur[e] consistent answers accurately reflecting the
jury's findings."

Id. at 222 (quoting Roland v. Brunswick Corp., 215 N.J.
Super. 240, 244 (App. Div. 1987)).

The Court emphasized that the jury was capable of following the trial

judge's curative instructions and capable of continuing "deliberations anew after

they have already engaged in deliberations . . . or to disregard prior

determinations in readdressing issues." Ibid. (citation omitted). The Court

found the trial judge remedied the inconsistency in the initial verdict sheet by

sending the jury back to the jury room for further deliberations. Id. at 223.

In Dubak v. Burdette Tomlin Memorial Hosp., 233 N.J. Super. 441 (App.

Div. 1989), the plaintiff sued a bar and its bouncers alleging they failed to

prevent an assailant from attacking and killing his son in the bar's parking lot.

A-2611-18T1
42
Id. at 444. The jury returned a verdict finding the defendant was not negligent,

but also allocated thirty percent fault to the bar and the bouncers. Id. at 454.

The trial judge explained the inconsistency to the jury and told them to return to

the jury room to reconsider their position. The jury sent a note to the trial judge

explaining what they believed to be inconsistency with the jury sheet. Id. at

455. The judge responded by asking whether the failure was a proximate cause

of the decedent's injuries, and the jury responded yes. Ibid. As a result, the

judge entered judgment against the defendants. Ibid. On review, we affirmed

finding "no error in the procedure employed by the trial [judge] in its attempt to

determine the basis of the apparent inconsistency in the jury's original findings."

Id. at 455. We stated:

We perceive no abuse of discretion here. Faced with
the logical incongruity in the jury's original answers to
interrogatories, the trial court was obliged to explain
the difficulty and, upon proper supplemental
instructions, to require it to reconsider its responses in
light of the law. The court's inquiry and the
supplemental instructions given were entirely
appropriate.

[Id. at 456. (internal citations omitted).]

Here, after conferring with the attorneys, the judge brought out the jurors,

explained the inconsistency in their verdict, and asked them to retire and

continue their deliberations. This procedure the judge employed – explaining

A-2611-18T1
43
to the jurors the nature of the inconsistency in their verdict and instructing them

to continue their deliberations – was clearly appropriate and consistent with both

Mahoney and Dubak.

The trial judge believed that the jury intended to find for plaintiffs and

concluded the jury was confused generally regarding the substantial factor

question. She proposed adding language under question number three, that if

the jury found defendant's conduct was not a substantial factor in causing Kylie's

injury, the jury should cease deliberating. Both parties agreed with the

amendment of the verdict sheet and that the change would address the

inconsistent verdict. Thereafter, the judge explained the inconsistency to the

jury and then recharged the jury on the applicable law that related to question

number three on the verdict sheet. The jury returned its verdict by changing its

answer to questions three and six and reduced defendant's liability

apportionment from forty percent to thirty percent. We conclude the judge

reconciled the inconsistencies by providing an appropriate supplemental charge

and by submitting a revised verdict sheet.

Any arguments not specifically addressed lack sufficient merit to warrant

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

Affirmed.

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44