November 2, 2020

The Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) held in its Per Curiam opinion filed on September 2, 2020 that showing the jury pool a graphic photo of a toddler in the ICU in a medical malpractice case involving the infant’s death allegedly caused by the defendants’ medical negligence was not a sufficient basis for overturning the defense verdict, even though the New Jersey Appellate Court stated “we question why photographs or other evidence should ever be shown to an array during voir dire.”

The Underlying Facts

On December 15, 2016, the plaintiff filed a New Jersey medical malpractice complaint and jury demand on behalf of the estate of her son, Jayden, against the defendants for medical malpractice that resulted in Jayden’s death. Jayden, who was eighteen months old at the time of his death, suffered from X-linked Severe Combined Immune Deficiency. The plaintiff alleged that as a result of the defendants’ failure to properly examine Jayden and their deviations from the standard of care, Jayden was deprived of the opportunity to undergo a life-saving bone marrow transplant, which caused him to suffer extreme pain and discomfort and a decreased quality of life, and ultimately caused his death.

At the start of jury selection, a juror questionnaire was distributed to the jury pool. The questionnaire contained four sections and asked questions including whether the potential jurors or their family members or close friends had ever worked in the medical profession or investigated medical or personal injury claims; had ever experienced the loss of a child; had ever suffered from a chronic disease that impacts the immune system or any other disabling illness; or were pregnant at the time. It also asked, “If the law and evidence warranted, would you be able to render a verdict in favor of the plaintiff or defendant regardless of any sympathy you might have for either party?” (question thirteen). Attached to the questionnaire was a photograph of Jayden in the Intensive Care Unit.

The plaintiff’s New Jersey medical malpractice lawyer objected in chambers to showing the jury pool the photograph, contending that it would bias the process. Thereafter, on the record, the judge noted that the “only thing left of any contention was whether or not we should show the jury pool a copy of the photo,” and he asked if defense counsel was stipulating that the photograph be admitted into evidence. Because defense counsel was stipulating to the admission, the judge allowed the photograph to be shown to the jury pool, stating he did not “see a problem with it” or “see anything prejudicial because they’re going to see it anyway.” After that determination, the plaintiff’s lawyer requested that the jury see more than one photograph, but that request was denied.

Prior to distributing the jury questionnaire, the judge explained to the jury pool that the photograph was provided to ensure that they could “decide this case based upon the facts and the evidence, not on sympathy.” The judge stated that the picture was “not for shock value” but to give them “an idea of . . . what [they would] see during the course of the trial” and “make sure [they] underst[oo]d the question” to be decided. After providing the potential jurors with an opportunity to review the questionnaire, the judge did not read the voir dire questions to the entire array; rather, as the jurors were called, he questioned each of them individually regarding their responses to each question, referring to the questions by number only. In response to question thirteen, three potential jurors were dismissed after stating that they would be unable to do so. Subsequently, two additional potential jurors were excused due to their response to question thirteen.

On September 27, 2018, the New Jersey medical malpractice jury returned a verdict in favor of the defendants, and the plaintiff appealed.

New Jersey Appellate Court Opinion

With regard to the graphic photo shown to the jury pool, the New Jersey Appellate Court stated: “We also reject plaintiff’s argument that the judge erred in allowing the jury pool to view “emotionally[]charged photographic evidence” of the decedent in critical condition in the ICU because it “tainted the jury selection process and biased the . . . process in favor of defendants.” Plaintiff initially objected to showing the photograph but on the record requested that more photographs be displayed. Although we question why photographs or other evidence should ever be shown to an array during voir dire, only two excused jurors mentioned the photograph as a reason they could not be impartial; the remaining excused jurors had more general reasons, including the loss of a young relative or their work with young children. Moreover, in requesting that additional photographs be displayed, plaintiff’s counsel evidently recognized that the photograph was capable of invoking sympathy to his client’s benefit.”

The New Jersey Appellate Court held: “In short, none of the cited errors, individually or on a cumulative basis, were clearly capable of  producing an unjust result and, as such, we decline to disturb the jury’s verdict. Affirmed.”

Source O’Connor v. Riverside Pediatric Group, Docket No. A-0700-18T2.

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