dissenting.
Stripped to its essence, this ease requires us to determine whether “[t]he jury’s verdict [in the first trial] is worthy of the confidence of this Court.” State v. Nelson, 155 N.J. 487, 532, 715 A.2d 281 (1998) (Coleman, J.,' concurring in part and dissenting in part), cert. denied, 525 U.S. 1114, 119 S.Ct. 890, 142 L.Ed.2d 788 (1999). In the past, we have set aside verdicts that have not engendered our confidence because of flaws in the jury deliberation process. One example is found in Tobia v. Cooper Hospital University Medical Center, 136 N.J. 335, 643 A.2d 1 (1994). In that case, also a medical malpractice action, we set aside a verdict favorable to the defendants because jurors may have improperly focused on the plaintiffs conduct rather than on whether the defendants were negligent. In so doing, we observed that the “possibility [of that juror error] so undermines our confidence in the jury’s verdict as to compel us to reverse and remand for a new trial.” Id. at 344, 643 A.2d 1.
Here, we are confronted not with a “possibility” of juror error, but rather the clear admission by one juror that she failed to vote on the two questions that related to whether Dr. Podolnick’s conduct increased the risk of harm to Mrs. Brown. Those questions were at the heart of this case. Before that error became apparent, the trial court discovered that the jury as a whole had rendered an inconsistent verdict by attributing a percentage of negligence to Dr. Podolnick while, at the same time, finding him not responsible for reducing Mrs. Brown’s life expectancy.
In its opinion below, the Appellate Division outlined the public policy favoring the full participation of all jurors:
*232The main reason why the deliberation of all jurors on all issues is necessary is that a jury’s decision is not final until its conclusion is submitted to and accepted by the judge. Up until that point it is merely a tentative agreement among the jurors subject to change. Until a final verdict is rendered, the jurors may reconsider any or all of the issues. Thus, for example, a jury may begin its deliberations by concluding that both of two defendants in a tort case are liable and then, in allocating percentages of negligence, determine that one, in fact, is not liable at all. This is why the participation of all jurors, including those dissenting on initial questions, is of importance right up until the return of the verdict.
[footnote and citation omitted.]
I am guided by similar reasoning found in Petrolia v. Estate of Nova, 284 N.J.Super. 585, 666 A.2d 163 (App.Div.1995), certif. denied, 143 N.J. 516, 673 A.2d 276 (1996), a decision the majority declines to endorse. The Petrolia court expressed its preference for full jury participation, observing that “ ‘numerous recent studies have demonstrated that the quality of the jury’s discussion and deliberation is better in larger groups than in smaller ones.’ ” Id. at 592, 666 A.2d 163 (quoting Richard S. Arnold, Trial by Jury: The Constitutional Right to a Jury of Twelve in Civil Trials, 22 Hofstra L.Rev. 1, 31 (1993)). The failure of jurors to fully participate mars the deliberation process, causing all litigants and the system as a whole to suffer.
In the present case, the parties stipulated to the participation and deliberation of all eight members of the jury. Both sides were aware of the potential loss of the eighth juror due to a scheduling conflict. In the event of that loss, the parties expected that the seven remaining jurors would participate and vote on all questions.
As I interpret the record, that expected participation of the seven jurors simply did not occur. The record indicates that one juror, Juror Number Five, did not vote on questions two and three. When asked by the trial court how she voted on question two, Juror Number Five stated, “I didn’t vote[.]” She responded similarly when asked how she voted on question three. By my reading of the record, Juror Number Five believed that having decided in a previous question that Dr. Podolnick did not deviate from the accepted standards of medical practice, there was no *233need for her to vote on questions two and three. When polled, she told the court, “I understood that if I said no [to question one] that I didn’t have to answer [question two]----[I]t says ... if no, skip to four.” In view of those statements, I am unable to conclude with confidence that Juror Number Five answered or deliberated on all questions.
Moreover, the abstention of that juror frustrated the mutual expectations of the parties. Juror Number Five’s failure to answer all questions diminished the accuracy of the process. Thus, the trial court was well justified in basing, at least in part, its grant of a new trial on that error. In hindsight, we also have the benefit of knowing that a second jury trial yielded a verdict with no apparent juror error. (That second jury also awarded damages to plaintiff, although the amount was less than the first jury’s award.)
The tidal court identified other problems with the first trial. Specifically, the court perceived error in the way plaintiffs counsel conducted himself at closing and elsewhere in the proceedings. The trial court’s perceptions are entitled to greater deference than that afforded by the majority. “An appellate court should give considerable deference to a trial court’s decision to order a new trial, as the trial court has gained a ‘feel of the case’ through the long days of the trial.” Lanzet v. Greenberg, 126 N.J. 168, 175, 594 A.2d 1309 (1991).
The Court acknowledges that, without the benefit of side-bar transcripts, its ability to review some aspects of the proceedings is circumscribed. Ante at 227-28, 773 A.2d at 1116. That acknowledgment only fortifies my view that we should defer to the trial judge who was present during all side-bar conversations and thus was in the unique position to pass on the propriety of defendants’ objections.
Although, as the majority correctly notes, the trial court did not dismiss the jury during the summation of plaintiffs counsel, ante at 228, 773 A.2d at 1116-17, the court did, in fact, dismiss the *234jurors after that summation was completed in response to objections by defense counsel. The record indicates:
(Jury present)
THE COURT: Members of the jury, if you want to stand up for just a minute and stretch your legs, rather than — you don’t have to stand up, you can if you want to. Just for a minute if you want to while I gather my papers together here.
(Pause)
DEFENSE COUNSEL: Judge, may we be heard briefly before you start the charge? There are some motions that may affect the charge.
THE COURT: All right. I guess you’ll have to go back to the jury room.
PLAINTIFF’S COUNSEL: Do you want to try it at sidebar, Judge?
THE COURT: No. No. Please don’t start to talk about it yet. We’ll call you back in as soon as we’re ready.
(Jury out)
Once it dismissed the jury, the court entertained defendants’ lengthy objections to the summation of plaintiffs counsel, including an objection to counsel’s comments regarding the testimony of Dr. DeLaurentis. One defense counsel remarked, “Judge, I have never in all the years Fve been doing this ... seen what I deem to be totally inappropriate comments made in closing as I have this morning.” The court seemed to agree, stating to plaintiffs counsel: ‘Well, actually, ... you said a lot of things during your closing which were not my recollection of how the facts came out during the course of the trial[.]”
Nonetheless, the court denied defendants’ motion for a mistrial, stating “[wje’ll get through this, we’ll see what the jury has to say and then we’ll have our post-trial motions and whatever happens after that, happens.” The trial court then called for the jury. Because the jury apparently had been dismissed on numerous other occasions, the court assured jurors on their return, “I promise you that’s the last of the delays because this is the end of it. There will be no more delays.”
Referring to that last dismissal of the jury (the dismissal that followed the summation of plaintiffs counsel), the judge observed *235in his statement to the Appellate Division: “I recall [that there] was a problem with [the] comments [of plaintiffs counsel] during his summation. I remember that, upon an objection being interposed, I excused the jury for a discussion out of their hearing. I have never done that before or since in almost 18 years on the trial bench.”
We should heed those strong words of the trial court. Although I might agree with the majority’s ultimate conclusion that plaintiffs counsel did not act improperly, “we [should] not substitute our judgment for the judgment of those closest to the trial when it appears that they have acted reasonably under the circumstances.” State v. Zhu, 165 N.J. 544, 555, 761 A.2d 523 (2000). A trial court’s rulings concerning confusion on the part of jurors or the conduct of trial counsel fall squarely within the category of those decisions warranting a high level of deference.
In sum, Juror Number Five conceded that she misunderstood the verdict sheet and did not vote on two critical questions. That irregularity was contrary to this Court’s teaching that “each juror must deliberate fully and fairly on each question or special verdict[.]” Williams v. James, 113 N.J. 619, 632, 552 A.2d 153 (1989). The trial court appeared deeply troubled by the jury’s verdict and identified other problems concerning the first trial. The second verdict rendered by a different jury was apparently free of any juror confusion or similar error. In view of those problems concerning the first trial and verdict, I would not disturb the second verdict. Thus, I respectfully dissent.
JUSTICE LaVECCHIA joins in this opinion.
For reversal and reinstatement — Chief Justice PORITZ and Justices STEIN, COLEMAN and ZAZZALI — 4.
For affirmance — Justices VERNIERO and LaVECCHIA — 2.