Opinion
DOCKET NO. A-2712-13T3
05-12-2015
OLIVIA VAJDICS and NICHOLAS VAJDICS, Plaintiffs-Appellants, v. PRINCETON MARKET FAIR, SHOEMAKER CONSTRUCTION, and THOROBRED FLOORING, INC., Defendants-Respondents.
Evan J. Lide argued the cause for appellants (Stark & Stark, attorneys; Denise M. Mariani, of counsel and on the brief). Michael Riehl argued the cause for respondents (Britt, Riehl & Spudic, PC, attorneys; Mr. Riehl, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and St. John. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2566-10. Evan J. Lide argued the cause for appellants (Stark & Stark, attorneys; Denise M. Mariani, of counsel and on the brief). Michael Riehl argued the cause for respondents (Britt, Riehl & Spudic, PC, attorneys; Mr. Riehl, of counsel and on the brief). PER CURIAM
Plaintiffs appeal from the denial of their motions for a new trial and for reconsideration after a jury returned a verdict in favor of defendants in this slip and fall case. We affirm.
The facts relevant to this appeal concern the voir dire of prospective jurors and those facts presented to the court after the verdict.
Plaintiffs were represented at trial by Denise M. Mariani of the law firm, Stark & Stark. Among the questions posed to the jurors during voir dire were whether the jurors, any close friends or family members had been involved in a lawsuit and if they were familiar with the lawyers handling the present matter. The jurors were then asked if they had responses to any of the questions. Juror K.M. volunteered that she had a response and was asked to come to sidebar. The following colloquy transpired:
THE COURT: What are your responses?
K.M.: Just to the last, I've had -- my husband had a claim against him several years ago, where --
THE COURT: Five years, ten years?
K.M.: Oh, more than ten.
THE COURT: Okay. And what kind of a claim was that?
K.M.: For motor vehicle --
THE COURT: Okay. And --
K.M.: -- accident.
THE COURT: So somebody sued him claiming he was at fault for an accident and how did that resolve? Was it settled? Did it go to trial? And if so, don't give us any numbers though.
K.M.: It was -- yeah. No. It was settled --
THE COURT: Okay.
K.M.: -- between the insurance companies.
THE COURT: Okay. Did he have to testify in court?
K.M.: He -- I don't believe in court. He did have to -- there were lawyers involved, but he wasn't --
THE COURT: Okay. And he had to give a statement or --
K.M.: Mm-mm.
THE COURT: Okay. Anything about his experience, as having been sued, that would affect your ability to be fair in judging this case?
K.M.: No.
THE COURT: Okay. Do you recall the type of injuries that the person who sued him, what they were alleging? What part of their body that they claimed they injured?
K.M.: I believe it was, like, neck.
THE COURT: Okay.
K.M.: The neck and back injuries.
THE COURT: Okay. Now, when you say back, you've heard me say that in this case the plaintiff is alleging injury to her ankle, foot, and lower back. The fact that she's alleging some low back injury, would that affect your decision making if your husband, the person in that case, was alleging back injury?
K.M.: No.
THE COURT: Okay. Anybody have any further questions, follow-up?
MR. RIEHL: I have no questions.
MS. MARIANI: No, Your Honor.
THE COURT: Okay. You can have a seat then, ma'am. Thank you. That was it, right? As far as your responses?
K.M.: Yeah, that was it.
THE COURT: Okay. Great. Thanks.
K.M. was selected to serve on the jury. At the conclusion of the trial, the jury returned a verdict of no cause for action by a vote of five to one.
After the jury returned a verdict in favor of the defense, Mariani's associate conducted a database search of the jurors. The investigation revealed that Mariani represented the plaintiff in a case in which K.M.'s husband was one of the defendants, Hohman v. Linardos, the matter K.M. identified during voir dire. When she appeared in the Hohman matter, Mariani's surname was Forrester.
Plaintiffs filed a motion for a new trial "based upon the misrepresentations of a juror." The motion did not include a request for a plenary hearing as to the allegations that formed the basis of the motion.
The motion was supported, in part, by a certification from Mariani. After noting she introduced herself to the jury as a member of the law firm of Stark & Stark, Mariani averred that, in response to the court's inquiry as to whether the jurors had prior knowledge of the lawyers or their firms, K.M. "not only withheld the fact that her husband was sued by Stark & Stark but she withheld the fact that [Mariani] was the specific attorney who handled the case." Mariani contended K.M. had misrepresented the nature of the case and its impact on her personally, not disclosing she and her husband faced the risk of personal liability because the claimed damages exceeded the limits of their insurance coverage. Moreover, Mariani insinuated K.M. intentionally misled the court, stating "[K.M.'s] tone of voice was deliberate in downplaying the matter." Mariani did not recall that K.M.'s husband was involved in the prior litigation and stated she rarely recalled the names of the defendants she had sued.
The judge listened to K.M.'s voir dire on CourtSmart and made the following observations:
I, first off, don't see any evidence that [K.M.] remembered and deliberately withheld that Stark & Stark, or that Ms. Mariani, who then was Ms. Forrester, was the -- one of the attorneys, because as Mr. Riehl says, there were numerous attorneys. I think he said there were -- noted five, not that they all represented the plaintiff, but that they were involved in that case.
So, when we are talking about a case where the accident occurred well over ten years ago, like 2001, where the litigation ended in 2004, where the letters, the pleadings, whatever that was sent to [K.M.'s husband], it was [K.M.'s husband], it wasn't Mr. and Mrs., so we do not know if she ever reviewed any pleadings. We don't know that she was contacted directly.
Now I'm not -- again, I'm not saying what an attorney who represents a husband, whose assets may be on the line, what he should or shouldn't say to the wife, but I'm saying that I don't think there's any basis to say she had to have remembered it was Stark & Stark, she had to have known it was Denise Forrester, now Mariani, who brought that case in which her husband was a defendant. There's just no basis for it.
Like I said, she didn't hesitate. I have some jurors where they sit there for the questioning of, were you or close friends or family members ever involved in an accident or in any litigation? And they sit there
and basically say no, and then it's only on another question, when I'm asking them about a chiropractor, did you ever go to a chiropractor? And they say, oh, yeah, after that accident. I'm like, what accident? And then they start telling you about the accident.
That wasn't the case here. She was called from -- as a replacement juror from the audience. She came to sidebar. One of her first responses was, yeah, in response to the question about lawsuits. Not me, but my husband was sued, and I went through -- paraphrasing again, but I listened to CourtSmart -- what it was. I know Ms. Mariani says in her motion papers, well, from her tone of voice you could infer. I didn't hear that, number one, and I didn't hear any kind of hesitation where she wasn't going to disclose that her husband was involved in this accident.
Now, Ms. Mariani argues that it was minimized. I don't know that [K.M.], right now, if, you know, would know exactly how much the case, how it resolved, how much the insurance company paid on her husband's behalf. Even if she knew it at one point, she may have forgotten it. I mean, we are talking about close to ten years ago. So, again, there's no indication to me that she withheld any information and deliberately, you know, didn't answer certain a [sic] question, because from the perspective, if that was her motive, which it's being alleged that it was, then she would have just stayed quiet and not even told us that her husband was involved in any litigation.
In denying the motion, the trial judge voiced some skepticism of the timing of the database search after an unfavorable verdict. She noted there had been opportunities for counsel to conduct the search before the jury was sworn or before the alternate was selected, times in which K.M. could have been excluded from the deliberating jurors.
Plaintiffs filed a motion for reconsideration, which again did not request a plenary hearing. The motion was denied.
At oral argument, counsel stated the certification submitted in support of the motion for reconsideration requested a plenary hearing. That certification was not provided to this court.
Plaintiffs present two issues for our consideration in this appeal. First, they argue the court erred in denying the motion for a new trial. For the reasons that follow, we disagree. Second, they argue the court erred in making findings of fact and drawing conclusions about K.M.'s credibility without conducting a plenary hearing. The latter argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Our review of a trial court's ruling on a motion for a new trial is limited; we will not reverse that decision "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. The decision to grant or deny a motion for a new trial under Rule 4:49-1 lies within the sound discretion of the trial court. Fama v. Yi, 359 N.J. Super. 353, 357-58 (App. Div.), certif. denied, 178 N.J. 29 (2003). Moreover, "[a] jury verdict should be set aside only in cases of clear injustice." Little v. Kia Motors Am., Inc., 425 N.J. Super. 82, 92 (App. Div. 2012) (citation and internal quotation marks omitted).
"It is axiomatic that all parties to litigation are 'entitled to have each of the jurors who hears the case impartial, unprejudiced and free from improper influences.'" Arenas v. Gari, 309 N.J. Super. 1, 19 (App. Div. 1998) (quoting Wright v. Bernstein, 23 N.J. 284, 295 (1957)).
Where a juror on voir dire fails to disclose potentially prejudicial material . . . a party may be regarded as having been denied fair trial. This is not necessarily because of any actual or provable prejudice to his case attributable to such juror, but rather because of his loss, by reason of that failure of disclosure, of the opportunity to have excused the juror by appropriate challenge, thus assuring with maximum possible certainty that he be judged fairly by an impartial jury.
[In re Kozlov, 79 N.J. 232, 239 (1979).]
Therefore, a motion for a new trial may be granted if a juror omitted or falsified material information during voir dire that "had the potential to be prejudicial" and if disclosed, would have given counsel a reasonable basis to "exercise[] a peremptory challenge to exclude the juror." State v. Cooper, 151 N.J. 326, 349 (1997), cert. denied, 528 U.S. 1084, 120 S. Ct. 809, 145 L. Ed. 2d 681 (2000).
In Wright, a personal injury case, a prospective juror remained silent when asked if he or anyone in his family had been involved in "accident cases," although his mother had a pending action that was tried while the jury was deliberating. 23 N.J. at 291-92. When this became known, the defendants promptly moved for a mistrial, which the trial court denied. Id. at 292. Thus, there were two significant factors in Wright not present here: strong evidence the juror willfully failed to disclose prejudicial information and prompt action by counsel.
The Supreme Court characterized the juror misconduct in Wright as follows:
The misconduct here complained of is not a failure to answer a question improperly presented and unclear in nature, but rather that the answer given by design or otherwise was deceptive and misleading.
[Id. at 294 (emphasis added).]
The Court added there was no doubt that, if the prospective juror had answered truthfully, the defendants would have exercised a peremptory challenge. Ibid. The Court determined the juror's silence "had the effect of nullifying the purpose of the examination and was as effective as though the trial court had denied the right of challenge." Id. at 295; see, e.g., State v. Thompson, 142 N.J. Super. 274 (App. Div. 1976) (reversing the defendant's convictions where a juror failed to reveal he had served as a guard in a correctional institution approximately twenty-five years earlier and was currently serving on a municipal juvenile hearing board).
We accept plaintiffs' argument that, if K.M. had identified her husband as the defendant in a case handled by Mariani, a peremptory challenge would have been exercised. However, we decline to conclude that this alone required the trial judge to order a new trial under the facts of this case.
"'Voir dire practices must be geared to eliciting meaningful information from prospective jurors so those with a real potential for bias can be excused.'" State v. Bianco, 391 N.J. Super. 509, 517 (App. Div.) (quoting Administrative Office of the Courts, Directive #21-06, "Jury Selection Standards," p.1 (Dec. 11, 2006), available at http://www.judiciary.state.nj.us/directive/2006/dir_21_06.pdf), certif. denied, 192 N.J. 74 (2007). The trial judge questioned K.M. in a "thorough and meaningful" way, encouraging her to provide "clear and accurate answers" regarding the issue she raised. See id. at 518. At trial, plaintiffs' counsel was apparently satisfied with the scope of the questioning since she did not ask to supplement the questioning in any way. Thus, the manner in which K.M. was questioned by the court did not deprive plaintiffs of their fundamental right to examine and challenge prospective jurors.
Given the facts revealed by K.M., there is no reason to assume that, if questioned further, she would have concealed the facts regarding her husband's lawsuit that plaintiffs discovered after trial. It may be further inferred that the failure to request additional inquiry reflected plaintiffs' counsel's satisfaction with the process and with her evaluation of K.M. as a potential juror. Cf. State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).
Moreover, plaintiffs have failed to show that K.M. provided any material misinformation. As the trial judge observed, rather than remain silent to the question regarding prior lawsuits, she volunteered a response and answered all the court's questions at sidebar. Plaintiffs contend that the prominence of Mariani and her firm should have been sufficient to sear their identities in K.M.'s memory, placing on her the burden to recall the names of opposing counsel in a case that settled nearly a decade earlier. This premise is unrealistic. If anything, given the extensive personal injury practice of plaintiffs' counsel's firm, the information provided by K.M. regarding her husband's lawsuit should have prompted counsel to inquire further to determine if such a connection existed. Yet, when the trial judge asked trial counsel if they had further questions of K.M. after she finished her inquiry, the invitation was declined.
Finally, we note the untimeliness of plaintiffs' challenge to K.M.'s ability to serve as a juror. We acknowledge counsel's failure to pursue additional questioning during voir dire and delayed investigation do not rise to a "knowing failure to speak prior to the jury's verdict" that would constitute a waiver of the right to complain about K.M.'s participation as a juror. Bianco, supra, 391 N.J. Super. at 519. However, a jury verdict should not be subject to attack based on information that was available to trial counsel but not sought until after the trial was completed.
Once sworn, "the law presumes that every juror in a case is indifferent and above legal exception, or otherwise he would have been challenged for cause." Wright, supra, 23 N.J. at 294. Rule 1:8-3(b) provides:
A challenge to any individual juror which by law is ground of challenge for cause must be made before the juror is sworn to try the case, but the court for good cause may permit it to be made after the juror is sworn but before any evidence is presented."Relaxation of the rule should be granted only where there is a prima facie showing of actual prejudice to [a] defendant's right to a fair and impartial jury." State v. Simon, 161 N.J. 416, 481 (1999) (emphasis added).
In denying plaintiffs' motion, the trial judge noted that, if plaintiffs had pursued the database search earlier, even as late as when the alternate was selected, remedial action could have been taken to exclude K.M. from the deliberating jury. But plaintiffs did not raise their objections to K.M. until after the verdict was rendered and the jury discharged. "Calling back a jury for questioning following discharge is an 'extraordinary procedure,' to be utilized 'only upon a strong showing that a litigant may have been harmed by jury misconduct.'" Davis v. Husain, 220 N.J. 270, 279 (2014) (quoting State v. Athorn, 46 N.J. 247, 250 ( 1966), cert. denied, 384 U.S. 962, 86 S. Ct. 1589, 16 L. Ed. 2d 674 (1966)). That showing is absent here.
In sum, the voir dire of K.M. was conducted in a manner to fairly reveal facts that plaintiffs were free to explore further to determine whether a peremptory challenge should be exercised. Plaintiffs' counsel did not pursue additional inquiry during voir dire or at any time during the trial when the trial court would have had an opportunity to address any concerns regarding K.M. Plaintiffs' speculation that K.M. intentionally withheld information that related to a potential bias is refuted by the voluntary nature of her disclosure that her husband was a defendant in a personal injury lawsuit approximately one decade earlier and her responses to all questions asked of her. The trial judge did not abuse her discretion in denying the motion for a mistrial and reconsideration.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION