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Superior Court of New Jersey, Appellate Division.

DOLORES MARTIREZ, Individually and as Executrix of the Estate of Edgar Martirez, Plaintiff–Appellant, v. K. GEORGE YOUNAN, M.D., ALFONSO CIERVO, M.D. and BAYSHORE COMMUNITY HOSPITAL, Defendants–Respondents, ELIE E. MANSOUR, M.D., EDNA AQUINO, R.N., DORA BACKUS, R.N., CAROLINE ADAIR, R.N., CATHLEEN ALBERTO, R.N., ANNETTE GEE–MONAHAN, R.N., LAURA FRESHETT, R.N., and B. BALORE, R.N., Defendants.

DOCKET NO. A–0610–12T1

    Decided: March 26, 2014

Before Judges Lihotz, Maven and Hoffman.David A. Mazie argued the cause for appellant (Mazie Slater Katz & Freeman, LLC, attorneys;  Mr. Mazie, of counsel and on the briefs;  David M. Estes, on the briefs). David Parker Weeks argued the cause for respondent K. George Younan, M.D. (Ruprecht Hart Weeks & Ricciardulli, LLP, attorneys;  Mr. Weeks, of counsel and on the brief;  Sarah Gurka, on the brief). Joseph A. DiCroce argued the cause for respondent Alfonso Ciervo, M.D. (Law Offices of Joseph A. DiCroce, LLC, attorneys;  Sarah Hamilton Morley, on the brief). James M. Ronan, Jr. argued the cause for respondent Bayshore Community Hospital (Ronan, Tuzzio & Giannone, attorneys;  Michael E. McGann, of counsel and on the brief).

This appeal involves a claim brought by plaintiff Dolores Martirez, wife of the decedent Edgar Martirez (Edgar), who, as executrix of her late husband's estate and on her own behalf, filed an action in the Law Division asserting Edgar's death was caused by medical negligence.   Plaintiff appeals from the no-cause verdict, after a jury trial, in favor of defendants Dr. K. George Younan, M.D., Dr. Alfonso Ciervo, M.D., and Bayshore Community Hospital.   On appeal, plaintiff contends the trial judge erroneously allowed defendants to use the “empty chair” defense and failed to instruct the jury that the settling defendant could not be held negligent.   Finding no reversible error in any of the determinations challenged on appeal, we affirm.


Several weeks following open heart surgery, Edgar developed shortness of breath.   Dr. Younan, Edgar's cardiologist, diagnosed a pleural effusion,1 which required fluid to be drained from around the lungs in a procedure known as thoracentesis.   Dr. Younan referred Edgar to Dr. Mansour, a pulmonologist at Bayshore, to perform the procedure.   At approximately 9:00 p.m., Dr. Mansour performed the thoracentesis, which involved inserting a needle between the ribcage into the pleural space and draining the fluid.   Approximately ten minutes into the procedure, Edgar slumped over and his blood pressure decreased.   Dr. Mansour then noticed blood, not fluid, was filling the syringe and aborted the procedure.   The Bayshore rapid response team temporarily stabilized Edgar.

At around 10:00 p.m., Dr. Mansour asked Dr. Ciervo, a vascular surgeon, if he would be available to put a chest tube in a patient, if it became necessary.   Dr. Ciervo indicated he would be available to do so.   Dr. Ciervo did not examine or evaluate Edgar at that time.

Dr. Younan arrived at the hospital to check on Edgar at approximately 10:30 p.m. While examining Edgar with Dr. Mansour, Dr. Younan noted Edgar was “crashing” and ordered that he be transferred to the intensive care unit (ICU).   Upon arrival at the ICU, Edgar complained that he could not breathe and Dr. Mansour intubated him to permit manual ventilation.   At that time, a respiratory therapist reported that he was unable to ventilate Edgar and his blood pressure continued to drop.   Dr. Mansour called upon Dr. Ciervo to place a chest tube into Edgar, which he did at approximately 11:30 p.m. When the respiratory therapist was still unable to press air into Edgar, Dr. Ciervo performed an emergency tracheostomy.   Due to lack of oxygen, Edgar suffered a “hypoxic brain injury.”   As a result, Edgar became mentally and physically incapacitated until he passed away one year later.

Plaintiff filed this complaint against Drs. Younan, Mansour, Ciervo, and Bayshore.2  Defendants filed cross-claims against Dr. Mansour.   The day before trial, plaintiff settled her claims with Dr. Mansour for one million dollars, the full amount of his insurance policy.

Judge Heidi Willis Currier presided over the jury trial.   The judge preliminarily instructed the jury that plaintiff resolved her differences with Dr. Mansour, and for that reason, he would not be involved in the trial.3  The judge further told the jury that the effect of the settlement on the remaining parties was not their concern and they should not speculate about it.   The judge mentioned Dr. Mansour to the jury on only one later occasion, as we will later discuss.

In addition to her testimony, plaintiff presented expert testimony from Raji Dayal, M.D., a vascular surgeon;  Bennett Edward Ojserkis, M.D., a lung and critical care doctor;  and Bruce Charash, M.D., a cardiologist.   Drs. Younan and Ciervo testified and presented their respective experts Edward Julie, M.D., a cardiologist, and Bruce Mindich, M.D., a cardiothoracic surgeon.   Moreover, portions of defendants' as well as Dr. Mansour's depositions were read into the record.

Many of the experts discussed Dr. Mansour's involvement in Edgar's care.   We will briefly recite this evidence to provide context to plaintiff's arguments on appeal.   Dr. Dayal testified Dr. Younan contacted Dr. Mansour to perform the procedure to drain the fluid from Edgar.   Dr. Mansour reviewed an x-ray that confirmed Edgar had excess fluid in his chest.   Dr. Mansour performed the thoracentesis to drain the fluid.   When, during the procedure, Edgar collapsed and his blood pressure dropped, he was given oxygen and Dr. Mansour administered medications to elevate his blood pressure, gave him intravenous fluids, and ordered his transfer to the intensive care unit.   Dr. Dayal testified Dr. Mansour should have ordered a blood transfusion soon after the significant drop in Edgar's blood pressure.

Dr. Julie testified it was Dr. Mansour, as the experienced pulmonologist performing the thoracentesis, who was responsible to handle the complications resulting from the procedure.   Dr. Julie stated “it was clearly in my opinion Dr. Mansour's responsibility then to take care of all of those complications.”

Dr. Ojserkis, plaintiff's pulmonary/critical care expert, testified that upon reviewing Edgar's x-ray at 9:59 p.m., Dr. Mansour attempted to stabilize Edgar with fluids and medication.   He opined that had Dr. Mansour ordered the chest tube and blood transfusion soon after viewing that x-ray, but before midnight, Edgar's irreversible brain injury would not have occurred.

Dr. Mindich testified in defense of Dr. Ciervo.   He explained:  “It's my understanding that both Dr. Mansour and Dr. Younan, I believe, they were the people managing the patient and Dr. Ciervo's opinion and decisions were not requested or required.”   Dr. Mindich further stated that Dr. Mansour did not review Edgar's x-rays with Dr. Ciervo, or advise Dr. Ciervo of Edgar's medical history or the extent of the complications following the thoracentesis.

At the close of evidence, the trial court granted a directed verdict, dismissing defendants' cross-claims against Dr. Mansour, and determined that Dr. Mansour would not be included on the jury verdict sheet.

During summations, defense counsel argued the respective tasks and responsibilities of each doctor in treating Edgar.   Following plaintiff's objection to statements made by Dr. Ciervo's counsel, the judge instructed the jury that Dr. Mansour's resolution with plaintiff did not reflect any “concessions” he may have made.

After receiving the customary jury charges for a medical negligence case, the judge provided the jury with the verdict sheet.   Question one read:  “Was the defendant, Dr. K. George Younan, negligent in the care and treatment of plaintiff, Edgar Martirez?”   Question two read:  “Did the negligence of the defendant, Dr. Younan, proximately cause the plaintiff's injuries and[/]or death?”   Questions three and four addressed the same issues with respect to Dr. Ciervo.   Question five stated:  “Did the defendant, Bayshore Community Hospital, provide Dr. Ciervo for the plaintiff and did the totality of the circumstances created by the hospital's actions and inactions lead the plaintiff, Edgar Martirez, to reasonably believe that Dr. Ciervo was rendering care on behalf of Bayshore Community Hospital?”   Dr. Mansour was not mentioned on the verdict sheet.

The jury rendered a no cause verdict in favor of all defendants.   The trial judge issued a final judgment of no cause of action and dismissed plaintiff's complaint.

Plaintiff then moved for a new trial arguing the court erred by not providing proper jury instruction regarding Dr. Mansour's settlement and by permitting defendants to assert the “empty chair” defense during trial.   The judge denied the motion, concluding that her rulings did not “manifest denial of justice under the law.”

This appeal ensued.


In seeking to set aside the verdict, plaintiff argues on appeal that:  (1) the trial court committed reversible error by allowing an “empty chair” argument and refusing to instruct the jury that Dr. Mansour could not be held negligent, and (2) defense counsels' repeated reference to Dr. Mansour's settlement with plaintiff denied her a fair trial.

Based on our review of the record and applicable law, we are not persuaded that either of these arguments, either singularly or in combination, mandates reversal and a new trial.   We discuss each of them in turn.   Before doing so, we recite some overarching principles concerning the limited scope of our review and the stringent requirements for granting a new trial.

“Jury verdicts should be set aside in favor of new trials only with great reluctance, and only in cases of clear injustice.”  Boryszewski v. Burke, 380 N.J.Super. 361, 391 (App.Div.2005) (citations omitted), certif. denied, 186 N.J. 242 (2006).   It is well settled under our case law that the decision whether to grant or deny a motion for a new trial is left to the sound discretion of the trial judge and will be reversed only for an abuse of discretion.  Baumann v. Marinaro, 95 N.J. 380, 389 (1984).  “The standard for appellate review of a trial court's decision on a motion for a new trial is substantially the same as that controlling the trial court except that due deference should be made to its feel of the case, including credibility.”   Caldwell v. Haynes, 136 N.J. 422, 432 (1994) (internal citation and quotation marks omitted.)

Under Rule 4:49–1(a), a motion for a new trial should only be granted “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.”   That rigorous “standard applies whether the motion is based upon a contention that the verdict was against the weight of the evidence,” (citation omitted), or as here, “based upon a contention that the judge's initial trial rulings resulted in prejudice to a party.”  Hill v. N.J. Dep't of Corrs., 342 N.J.Super. 273, 302 (App.Div.2001), certif. denied, 171 N.J. 338 (2002).  “On a motion for a new trial, all evidence supporting the verdict must be accepted as true, and all reasonable inferences must be drawn in favor of upholding the verdict.”   Boryszewski, supra, 380 N.J.Super. at 427.


We begin with plaintiff's claim that the court committed reversible error by permitting defendants to employ the “empty chair” defense.   The pertinent background relating to this issue follows.   After the judge dismissed defendants' cross-claims against Dr. Mansour, and before summations, plaintiff's counsel argued that defendants' counsel maintained throughout the trial that Dr. Mansour deviated from the requisite standard of care.   Therefore, plaintiff requested the judge to instruct the jury that (1) dismissal of the cross-claims meant defendants had not met their burden in establishing that Dr. Mansour was negligent, (2) Dr. Mansour will not appear on the verdict sheet, and (3) Dr. Mansour will not be part of the jury's consideration.   Counsel further argued that defendants should be precluded from arguing in summation, as they did in their opening statements, that Dr. Mansour was responsible for Edgar's care.   The judge disagreed with plaintiff's counsel interpretation of the evidence and then engaged in the following colloquy:

THE COURT:  I disagree that there was argument that people said in opening that [Dr. Mansour] did something wrong.   All that's been discussed by everybody all along was what he actually did, his actions.

[PLAINTIFF'S COUNSEL]:  My recollection of their opening arguments was that Dr. Mansour was responsible.

THE COURT:  That's different.

[BAYSHORE'S COUNSEL]:  That's different.

THE COURT:  Responsible is very different.   That's what this whole case has been about is who has been responsible.   Whose job was it to order the chest tube and order the blood.   That's very different.

Responsible is a word we're using in two different ways then.

[PLAINTIFF'S COUNSEL]:  Responsible, you have to have a duty to be responsible in a medical negligence case, okay? ․

THE COURT:  They're arguing, whose job was it to do X, Y, and Z?

[PLAINTIFF'S COUNSEL]:  And they have not met their burden․

THE COURT:  They've had lots of experts who have said what each doctor's role was here, or particularly, what these two doctors' role was not here.   We'll go with that.

[PLAINTIFF'S COUNSEL]:  I'm not saying they can't discuss Dr. Mansour's involvement factually.   The problem I have here is that this jury has been led to believe throughout this trial that Dr. Mansour was also negligent and without some type of instruction to this jury ․ that the defendants have not met their burden of establishing that he breached the standard of care, that the jury is going to be misled, that it is entitled to consider that in its deliberations, and they're not.   They're just not.

․ So to now allow them to argue throughout this case and now again at closing without Your Honor giving this jury some direction under the limitations under which they can consider Dr. Mansour's conduct is going to mislead them and I just think it's ․ error.

THE COURT:  So what would you have me tell them?

[PLAINTIFF'S COUNSEL]:  As I have said before ․ you have heard argument concerning Dr. Mansour throughout this trial.   I am advising you that the court has determined that Dr. Ciervo and Dr. Younan have not met their burden in establishing that Dr. Mansour has breached the standard of care․

THE COURT:  But ․ I've never told them that the defendant has claims against Dr. Mansour, that they had a burden against Dr. Mansour.   I don't see that I would do an affirmative ruling on that.   The jury is aware Dr. Mansour was a defendant in the case.   The jury is aware that Dr. Mansour is a settling defendant in this case.   Normally, I would give them some more information about that, but he's not ․ being considered by them.

[PLAINTIFF'S COUNSEL]:  He's out of the case because Your Honor dismissed him from the case from the defense end.

THE COURT:  Right.   But in the jury's mind, he's always been out of the case.

[DR. CIERVO'S COUNSEL]:  I don't get why there should be any reason for the court to say a thing about it.   You said in the beginning that he settled and you're not to worry about the reasons why.   Now, they're going to get a verdict — a charge and a verdict form that doesn't consider them.

THE COURT:  Right.

They're making determinations today as to who was ․ responsible, ․ who was responsible in that hospital that night to do all of the various tasks that have been argued to have been done.

[T]hey have to argue about Dr. Mansour because it's in the chain of the responsibility between the two doctors that remain in the case.

[PLAINTIFF'S COUNSEL]:  No problem that they can discuss Dr. Mansour.   I understand that.   We're not going to ignore that Dr. Mansour existed or that he was involved.   I don't disagree with that.   But this jury needs to know under what circumstances they can evaluate his conduct.

THE COURT:  I disagree because I think that we're ․ talking about two different things․  [T]he only time Dr. Mansour would have ever been mentioned by me again would be if he was going to be on the verdict sheet․  But he's not—- it's very clear to them as they go along on the verdict sheet and when I discuss it with them, they're not considering—- the whole charge is just about the two doctors that are here and the hospital, how we've included them.

So I'm not going to ․ tell them anything more affirmatively.   I have told them he existed.   He resolved his difference with the plaintiff.   I don't even think I said settled.   I think I said, he resolved his differences and that should be of no concern to them․

Judge Currier ultimately ruled that she would not instruct the jury that defendants had not met their burden of proof in support of their cross-claims against Dr. Mansour.   Thereafter in their summations, defense counsel recounted the expert testimony of Drs. Dayal, Ojserkis, and Julie, who had each explained Dr. Mansour's and defendants' respective involvement in Edgar's care.   Defendants' counsel also argued that the expert testimony, as well as the testimony of defendants Drs. Younan, Ciervo, and Mansour, demonstrated that Dr. Mansour was the doctor principally responsible for Edgar's care that particular night, and the doctor in control of making the critical decisions ordering the insertion of the chest tube and ordering the blood transfusion.   Defendants' advanced their theory that Dr. Mansour's acts or omissions were a substantial factor contributing to Edgar's injuries.

An “empty chair” defense allows a defendant to claim his or her conduct was not a substantial contributing factor to the accident, and focuses the jury's attention upon the plaintiff's duty to prove that defendant's conduct was a proximate cause of the accident.  Fabian v. Minster Mach. Co., Inc., 258 N.J.Super. 261, 276–77 (App.Div.1992).   The practical effects of an “empty chair” defense is a defendant shifts blame to a joint tortfeasor who is not in the courtroom.”  Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 114 (2004) (citations omitted).   The “empty chair” defense can be asserted “against any party or non-party against whom no viable claim may be made.”  Conqiusti v. Ingersoll–Rand Co., Inc., 306 N.J.Super. 126, 135 n.1 (1997).   The non-party “may be a defendant who has already settled[.]”  Ibid.

Plaintiff contends the court wrongfully permitted defendants to argue that Dr. Mansour was negligent after he was dismissed from the case.   Specifically, plaintiff argues that defense counsels' repeated use of the word “responsible” during summations was akin to arguing Dr. Mansour was negligent, because “responsibility” and “negligence” have the same meaning in medical malpractice parlance.

We first address plaintiff's challenge to the meaning of the word “responsible” and note that plaintiff has not cited any authority in support of this contention.   Nor have we found any decisional authority specifically limiting the definition of “responsible” in the manner proffered by plaintiff.

One acceptable method of determining the plain, ordinary meaning of a word is by referring to a dictionary or thesaurus.  Boddy v. Cigna Property and Casualty Cos., 334 N.J.Super. 649, 656 (App.Div.2000).   Therefore, to resolve the plain language issue presented with respect to the meaning of this single word, we consider its ordinary dictionary meaning.  Ibid.

According to the Merriam–Webster Dictionary, the word “responsible” has several definitions.4  It could mean “having the job or duty of dealing with or taking care of something or someone,” or it could also mean “liable to legal review or in case of fault to penalties.”   In the instant case, it is clear that the word “responsible” was being used in reference to Dr. Mansour's job or duty in caring for Edgar.   As the trial court noted, “this whole case has been about ․ who has been responsible.   Whose job was it to order the chest tube and order the blood.”   The judge reasonably accorded the word its proper meaning in context with the court's assessment of the facts with respect to Edgar's treatment.

As to plaintiff's objection to the employment of the “empty chair” defense, defendants maintain they followed the court's ruling, which precluded them from implying that Dr. Mansour deviated from an accepted medical standard of care, and thus, did not assert an “empty chair” defense.5  Rather, they presented each doctors' responsibility, meaning his role, in rendering treatment to Edgar, which was permissible, and supported by the evidence.

In her oral decision on the motion for a new trial, the trial judge again agreed with defendants and ruled that it was appropriate for Drs. Younan and Ciervo's counsel to discuss Dr. Mansour's responsibility during closing argument.   Particularly, Judge Currier noted that:

Dr. Mansour had to be mentioned.   He was involved in the chain of events that evening in the treatment of [Edgar].   And, in fact, he had specific conversations with both of the remaining defendants and the factual issues of his conduct were all over this case and had to be all over this case and plaintiff's counsel understood that, but more than understood that, he agreed to it.

[Plaintiff's counsel] understood that and he said that several times that he did not have an objection to Dr. Mansour's factual allegations being discussed.   But Dr. Mansour was not a focus for this jury.   There was no law given with regard to his conduct and, in fact, on the verdict sheet, the jurors were only to focus on each remaining doctor's deviation from the standard of care.

Judge Currier also added:

The defendants were not arguing Dr. Mansour was negligent or that he deviated from accepted standards of medical care.   They argued that their clients were not [negligent], based upon the factual actions taken by Dr. Mansour and the testimony presented by the plaintiff's and the defendants['] experts.   Dr. Mansour, it was argued also had the opportunity to do both of the alleged claims of negligence.

Dr. Mansour's factual actions remained in the case.   His own deposition testimony described his position with regard to the other two doctors.   And it was always argued that the remaining two defendants' actions were not the proximate cause of this event.

Dr. Mansour was in this case.   There was no way around that.   Dr. Mansour had performed the procedure in this case, something had happened during that procedure.   The other two defendants both had conversations with Dr. Mansour.   He was not going to be able to be cut out of the case.

We are convinced that under the circumstances of this case, the judge did not err in permitting evidence of Dr. Mansour's involvement in Edgar's care to go to the jury for consideration in assessing the liability of the non-settling defendants.   Having found “no cause” of action against defendants, the jury clearly determined that neither Dr. Younan's nor Dr. Ciervo's conduct was the “proximate cause” of Edgar's harm.   See Fabian, supra, 258 N.J.Super. at 277.   We conclude further that defense counsels' references to Dr. Mansour's responsibility in their closing arguments were not improper.

Generally, attorneys are afforded broad latitude in summations.  Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 495 (2001);  Geler v. Akawie, 358 N.J.Super. 437, 467 (App.Div.), certif. denied, 177 N.J. 223 (2003).   Thus, “counsel may draw conclusions even if the inferences that the jury is asked to make are improbable, perhaps illogical, erroneous or even absurd.”  Colucci v. Oppenheim, 326 N.J.Super. 166, 177 (App.Div.1999), certif. denied, 163 N.J. 395 (2000).   The broad leeway, however, is qualified by the requirement that the comments on the evidence “must be based in truth, and counsel may not ‘misstate the evidence nor distort the factual picture.’ ”  Bender v. Adelson, 187 N.J. 411, 431 (2006) (quoting Colucci, supra, 326 N.J.Super. at 177) (internal citation and quotation marks omitted).

Applying these principles, we reject plaintiff's contention and conclude that the references to Dr. Mansour's responsibilities were not tantamount to arguing that he was negligent.   In the context of this case, the credible evidence in the record supports the assertion that Dr. Mansour, as plaintiff's pulmonologist, was “responsible” for critical aspects of Edgar's care, namely, directing Dr. Ciervo to insert the chest tube and ordering the blood transfusion.   Whether the remaining doctors performed their tasks and responsibilities negligently was for the jury to decide.   We presume the jury followed the court's instruction.   See State v. Loftin, 146 N.J. 295, 390 (1996).


Plaintiff next contends a new trial is warranted because of defense counsels' prejudicial references to Dr. Mansour's settlement as an admission of liability.   Plaintiff particularly notes several references made during opening and closing arguments.   Counsel for Dr. Ciervo stated in his opening argument that

Dr. Mansour was a doctor who was in this case.   He was named as a defendant.   He has made his peace with the plaintiff.   So he is not here today.   Dr. Younan is, the hospital is, and Dr. Ciervo is [here] because they didn't do anything wrong.   And they feel that strongly about it.

Plaintiff also argues Dr. Younan's counsel made a similar argument during his opening:  “So Dr. Younan called Dr. Mansour who you heard has settled his differences with the plaintiff and you're not going to see him in this trial.”

In summation, defense counsel for Dr. Ciervo told the jury “We're here because Dr. Ciervo, unlike Dr. Mansour, feels that he did not do anything wrong in this case so he was not settling.”   Plaintiff's counsel objected and moved for a curative instruction, arguing, in part, that the comments improperly implied to the jury that Dr. Mansour had settled because he had done something wrong or was negligent.

The court did not find fault with the statements, however, gave the curative instruction suggested by plaintiff, to ensure the jury did not infer that Dr. Mansour admitted or conceded liability when he settled with plaintiff.   The judge informed the jury, “I want to make sure you understand that [the fact that Dr. Mansour has resolved his differences with the plaintiff] doesn't have anything to do with him having made concessions with regard to this matter.”   Plaintiff did not object to the instruction.

In moving for a new trial, plaintiff reiterated the claim of prejudice from the remarks made by defense counsel.   Relying on Shankman v. State, 184 N.J. 187 (2005), plaintiff argued then, as she does now, that the court's instruction to the jury was “insufficient to cure the highly prejudicial inference created by defense counsel's comments.”   We disagree.

The remarks made in the opening statements were permissible in light of defendants' on-going cross-claims.   As to defendants' summations, without a doubt Dr. Ciervo's counsel's remark comparing Dr. Mansour's absence to the non-settling defendants was improper and demanded a curative instruction.   Where a jury has heard a statement from counsel or a witness that is irrelevant, inadmissible or otherwise improper and has the capacity for prejudice, the court's curative instruction must be prompt and sufficient to overcome the potential prejudice.   Pressler & Verniero, Current N.J. Court Rules, comment 9.2 on Rule 1:8–7 (2014).

When weighing the effectiveness of curative instructions, a reviewing court should give deference to the determination of the trial court.  Khan v. Singh, 397 N.J.Super. 184, 202–03 (App.Div.2007), aff'd, 200 N.J. 82 (2009).   To be sure, there are some circumstances where the resulting prejudice from counsel's remarks is so great that a curative instruction would be insufficient.   See Bender v. Adelson, 187 N.J. 411, 433 (2006) (where the cumulative effect of the summation comments necessitated a new trial).   This is not one of those times.   We also note that plaintiff did not interpose an objection to the content of the curative instruction, therefore we review it under the plain error standard.   See Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 128 (2008);  Fertile, supra, 169 N.J. at 493.   To warrant reversal, the error must be capable of producing an unjust result.   R. 2:10–2.

With respect to the purportedly offensive statements, unlike the trial judge, we view the summation statement by Dr. Ciervo's counsel as problematic and potentially prejudicial to plaintiff.   Counsel understood the jury did not have details of Dr. Mansour's settlement.   Thus, by improperly suggesting a reason for Dr. Mansour's absence from the case, counsel “invited the jury to infer that settlement with [Dr. Mansour] sprang from a recognition of the defendant's fault.”  Shankman, supra, 184 N.J. at 206–07.   Nevertheless, we are convinced, that the trial judge's curative instruction properly redressed any prejudice to plaintiff.

Contrary to plaintiff's assertion, the instruction here was unlike the judge's instruction in Shankman, in which the trial court stated:

You may consider those charges of Dora Shankman as evidence of fault against Steven [sic] Shankman and you may give that evidence whatever significance and whatever weight you deem appropriate.

[Id. at 194.]

In the instant case, the judge's instruction directed the jury, as in the preliminary charge, to disregard Dr. Mansour's settlement or any reasons for the settlement.   The instruction was prompt, “clear” and “alleviate[d] potential prejudice to ․ plaintiff.”  State v. Vallejo, 198 N.J. 122, 134–35 (2009).   When viewed in its proper context this instruction was not capable of misleading the jury, and it adequately addressed defense counsel's errant comment.

In sum, the record in this case supports Judge Currier determinations during the trial.   We agree defense counsels' statements, individually or in the aggregate, did not deprive plaintiff of a fair trial.   See Diakamopoulos v. Monmouth Med. Ctr., 312 N.J.Super. 20, 37 (App.Div.1998).   Accordingly, Judge Currier correctly found a new trial was not warranted.



FN1. Pleural effusion is an excessive amount of fluid that accumulates between the two pleural layers that surround the lungs.   Excessive amounts of such fluid can impair breathing by limiting the expansion of the lungs during ventilation.   Pleural Effusion:  MedlinePlus Medical Encyclopedia, (last visited March 18, 2014)..  FN1. Pleural effusion is an excessive amount of fluid that accumulates between the two pleural layers that surround the lungs.   Excessive amounts of such fluid can impair breathing by limiting the expansion of the lungs during ventilation.   Pleural Effusion:  MedlinePlus Medical Encyclopedia, (last visited March 18, 2014).

FN2. The claim against Bayshore was based upon a theory of apparent agency for the actions of Dr. Ciervo..  FN2. The claim against Bayshore was based upon a theory of apparent agency for the actions of Dr. Ciervo.

FN3. We have not been provided a transcript of the judge's preliminary instructions to the jury, however the judge later references that she gave a modified version of Model Jury Charge (Civil), 1.11G, “Settling Defendant–Preliminary Charge” (2007)..  FN3. We have not been provided a transcript of the judge's preliminary instructions to the jury, however the judge later references that she gave a modified version of Model Jury Charge (Civil), 1.11G, “Settling Defendant–Preliminary Charge” (2007).

FN4. Merriam–Webster Dictionary, (last visited March 10, 2014)..  FN4. Merriam–Webster Dictionary, (last visited March 10, 2014).

FN5. Specifically, Dr. Younan claims that he did not employ the “empty chair” strategy because his defense at all times was based on the delineation of the respective medical responsibilities of the three physicians involved in the care and treatment of Edgar.   Dr. Ciervo argues that no one claimed that Dr. Mansour was negligent..  FN5. Specifically, Dr. Younan claims that he did not employ the “empty chair” strategy because his defense at all times was based on the delineation of the respective medical responsibilities of the three physicians involved in the care and treatment of Edgar.   Dr. Ciervo argues that no one claimed that Dr. Mansour was negligent.


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