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Superior Court of New Jersey, Appellate Division.

MIREILLE FRANCOIS, Plaintiff–Appellant, v. RICHARD TAI, M.D., Defendant–Respondent.

DOCKET NO. A–2323–12T2

    Decided: April 16, 2014

Before Judges Parrillo and Harris.Piro, Zinna, Cifelli, Paris & Genitempo, P.C., attorneys for appellant (Richard A. Grodeck, on the brief). Widman, Cooney & Wilson, LLC, attorneys for respondent (Joseph K. Cooney, of counsel;  Michael J. Kontos, on the brief).

In this medical malpractice action, plaintiff Mireille Francois appeals from the Law Division's January 3, 2013 order denying her motion for a new trial on damages only.   We affirm.


This case arises from a mistake made by defendant Richard Tai, M.D., in performing surgery on Francois on March 24, 2008, to remove fibroids attached to her uterus.   These fibroids had caused Francois pain for many years and she had several prior surgical procedures to remove them.   During the present procedure, while removing adhesions (scar tissue) that were blocking his field of vision, Dr. Tai accidentally injured Francois's bowel, which was immediately repaired.   The injury at issue was a laceration to Francois's bladder that also occurred during this surgery, but was not discovered during the operation.   Six days later, after complications became apparent, additional surgery was performed, during which “a four-centimeter, one-and-a-half-inch laceration in the posterior back part of the bladder” was discovered and repaired.   During this second procedure, a colostomy was also performed, due to fears about infection.

Because of these complications, Francois remained hospitalized for many days, including one week in intensive care.   During this time, she was distraught and, as she testified, she “cr[ied] every day.”   After her discharge from the hospital, Francois still wore a catheter, as well as, a colostomy bag, which had to be changed frequently.   The catheter was removed approximately “[o]ne month and a half” later, and the colostomy was surgically reversed in July 2008.   Following these procedures, Francois remained unable to work until September 2008, when she returned to her nurse's aide position.   In all, she missed approximately six months of work instead of the six-to-eight weeks originally projected.

On April 23, 2009, Francois filed a one-count medical malpractice complaint against Dr. Tai. The jury trial commenced on October 11, 2012 and continued for three days.

During closing arguments on October 15, 2012, Dr. Tai's counsel argued to the jury that the initial operation was successful in that it relieved Francois of the continuous pain she had experienced due to fibroids, stating that Francois was “not having abdominal pain as a result of these fibroids.”   Defense counsel also claimed that Francois's “quality of life is improved as a result of the surgery that Dr. Tai did for her[,]” a risky surgery that his client performed even though “others weren't willing to take that same risk.”

Francois's attorney objected, noting to the trial court that defense counsel's statement that Francois no longer suffered pain from fibroids was not relevant to the cause of action and, based on the videorecorded de bene esse deposition of urologist Malcolm Schwartz, M.D., was not true.1  Francois's attorney requested that the court deliver a curative instruction, telling the jury that it was not relevant and not to speculate on whether the procedure was successful or not.   The trial court ultimately delivered the following curative instruction right before Francois's attorney delivered his summation:

Ladies and gentlemen of the jury, during the defendant's closing there was a mention by defendant's counsel that the plaintiff no longer had bleeding or abdominal pain.

There was no testimony on this issue and the jury is instructed that whether or not the procedure was successful is irrelevant to the issues before this jury.

The jury rendered a verdict finding Dr. Tai liable and awarding Francois $30,000 in damages.   Because the parties had previously stipulated to $4000 in lost wage damages, the total award was $34,000.

On November 2, 2012, Francois filed a motion for a new trial on damages or, alternatively, an additur.   She alleged that defense counsel's improper summation resulted in a damage award that was improperly low.   During a January 3, 2013 hearing, Francois's counsel argued that the comments comprised a “naked invitation to discount this verdict.”   Francois's attorney also sought to have the trial court consider whether the comments were fair or unfair in light of Dr. Schwartz's deposition testimony about Francois's continuing pain.   The court refused to consider this deposition, noting, “if it wasn't shown to the jury, I'm not looking at the transcript.”   After considering both sides' arguments, the trial court denied the motion for a new trial or an additur.   This appeal followed.


Rule 4:49–1(a) provides, in pertinent part, that a trial court must only grant a motion for a new trial “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.”   The court must resist the temptation “to substitute ․ [its] judgment for that of the jury merely because ․ [it] would have reached the opposite conclusion.”  Barber v. ShopRite of Englewood & Assocs., Inc., 406 N.J.Super. 32, 52 (App.Div.2009) (internal quotations and editing marks omitted).  “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 v. Burke, 380 N.J.Super. 361, 391 (App.Div.2005), certif. denied, 186 N.J. 242 (2006).

On appeal, we must defer to the trial court's “feel of the case” regarding the demeanor and credibility of witnesses.  Jastram v. Kruse, 197 N.J. 216, 230 (2008);  Carrino v. Novotny, 78 N.J. 355, 360–61 (1979).   Importantly, “an appellate court may overturn a jury verdict ‘only if [that] verdict is so far contrary to the weight of the evidence as to give rise to the inescapable conclusion of mistake, passion, prejudice, or partiality.’ ”  Innes v. Marzano–Lesnevich, _ N.J.Super. _, _ (App.Div.2014) (slip op. at 30) (quoting Kassick v. Milwaukee Elec. Tool Corp., 120 N.J. 130, 134 (1990) (quoting Wytupeck v. City of Camden, 25 N.J. 450, 466 (1957))).   The decision to deny a motion for a new trial will be reversed only for an abuse of discretion.  Baumann v. Marinaro, 95 N.J. 380, 389 (1984).

Attorneys are generally afforded broad latitude in making closing statements.  Brenman v. Demello, 191 N.J. 18, 33 (2007).   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).   However, any statements “must be based in truth,” and counsel may not “ ‘misstate the evidence [or] distort the factual picture.’ ”  Bender v. Adelson, 187 N.J. 411, 431 (2006) (quoting Colucci, supra, 326 N.J.Super. at 177)).

When a summation “ha[s] the ability or ‘capacity’ to improperly influence the jury's ‘ultimate decision making,’ ” judicial intervention is required.   Risko v. Thompson Muller Auto. Grp., 206 N.J. 506, 522 (2011).   Appropriate judicial intervention may be sufficient to cure any potential prejudice.   City of Linden v. Benedict Motel Corp., 370 N.J.Super. 372, 398 (App.Div.) (“[A] clear and firm jury charge may cure any prejudice created by counsel's improper remarks during opening or closing argument.”), certif. denied, 180 N.J. 356 (2004).   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).   There is a presumption that the jury will obey a curative instruction.  State v. Winter, 96 N.J. 640, 649 (1984).

Thus, a court should grant a party's motion for a new trial based on improper comments only if the comments are so prejudicial that “ ‘it clearly and convincingly appears that there was a miscarriage of justice under the law.’ ”  Bender, supra, 187 N.J. at 431 (quoting R. 4:49–1(a)).

We generally defer to the trial court's determination as to the effectiveness of the curative instruction.  Khan v. Singh, 397 N.J.Super. 184, 202–03 (App.Div.2007), aff'd, 200 N.J. 82 (2009).   Whether “a comment by counsel is prejudicial and whether a prejudicial remark can be neutralized through a curative instruction or undermines the fairness of a trial are matters peculiarly within the competence of the trial judge.”  State v. Yough, 208 N.J. 385, 397 (2011).

Our review of the record in the present appeal confirms that defense counsel's challenged remarks, while inappropriate, did not cause a “miscarriage of justice.”   Moreover, any prejudice was obviated by the trial court's prompt and direct curative instruction at the beginning of Francois's summation.   Francois's claim that the quantum of the award was the result of the erosive effect of the contested comments is entirely speculative, and fails to convince us that the trial court abused its reservoir of discretion when the new trial motion was denied.

The trial's main focus was the pain and suffering that Francois had endured in the aftermath of her procedure (a period ending in September 2008).   The jury heard testimony from Francois and her family members about her condition after the surgeries and during her recovery.   They also heard testimony from two experts who disagreed about the colostomy procedure's necessity.   If the jury accepted the testimony of Dr. Tai's expert, then it could not attribute the colostomy to any negligence by Dr. Tai. This would have potentially reduced the damage award.

In this vein, we conclude that the trial court did not commit reversible error when it refused to fully consider Dr. Schwartz's deposition.   The court refused to look at the deposition transcript, noting, “if it wasn't shown to the jury, I'm not looking at the transcript.”   However, Francois's attorney was allowed to argue that the deposition testimony had indicated that defense counsel's statement about no continuing pain was not correct:

[A]nd this is why Dr. Schwartz, the de bene esse deposition, which you indicate that you haven't considered, is so important․  His testimony, and I quoted extensively from it [in the motion papers], was she presented with complaints of abdominal pain.   He concluded those ․ complaints of abdominal were related to the fibroid ․ on the cervix, i[n] particular, which had not been removed.   That wasn't developed, it wasn't relevant[.]

The trial court was clearly aware of the existence of this evidence to rebut defense counsel's already-cured comment, even if it were not utilized in its new trial calculus.   In fact, further reference to, or use of, the deposition in the analysis was irrelevant because there was nothing in that deposition that was brought to the attention of the jury.   In light of our conclusion that the curative instruction was adequate to its task, the deposition controversy is moot.   To the extent that the trial court declined to consider this extraneous deposition evidence, it was following the mandate to consider only the evidence adduced at trial.

On a motion for a new trial solely on the issue of damages, the court should not disturb the award “unless it is ‘so disproportionate to the injury and resulting disability as to shock the conscience and [convince the court] that to sustain the award would be manifestly unjust.’ ”  Ming Yu He v. Miller, 207 N.J. 230, 249 (2011) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 604 (1977) (alteration in original)).

Furthermore, “[a] jury verdict, although not sacrosanct, is entitled to great deference.”  City of Long Branch v. Liu, 203 N.J. 464, 492 (2010).   Thus, a motion for an additur, “based on a claim that a jury award was against the weight of the evidence, should not be granted unless it ‘clearly and convincingly appears' that the award was so deficient that it constitutes a ‘miscarriage of justice.’ ”  Ibid. (citing Baxter supra, 74 N.J. at 596 (quoting R. 4:49–1(a))).   Thus, an additur should only be imposed when a new trial would otherwise be granted;  where the amount of damages is the sole source of the court's determination that a denial of justice has taken place, additur may be granted in lieu of a new trial.  Bishop v. Harski, 191 N.J.Super. 109, 112–114 (Law Div.1983) (allowing defendant to accept an additur or face new damages trial).

The concept of additur allows the “ ‘court, on motion for a new trial due to inadequate damages rendered by jury verdict, to require the defendant to consent to an increase to a stipulated amount of the award as a condition for denial of the motion for a new trial.’ ”  Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 491 n.2 (2001) (internal citation omitted).

In the present case, where the period claimed for pain and suffering was finite, and where there were contested opinions with respect to the extent of Dr. Tai's fault for the duration of such pain and suffering, we find nothing conscience shocking about the damages award.   We further have no basis to exercise original jurisdiction.   See State v. Santos, 210 N.J. 129, 142 (2012) (noting that Rule 2:10–5 “allow[s the] appellate court to exercise original jurisdiction to eliminate unnecessary further litigation, but discourag[es] its use if fact-finding is involved”).

The damages award in this case is cabined by Francois's claim of temporary pain and suffering.   Where the calculation of damages is based partially on the interpretation of Francois's testimony as to her condition at the time, as well as, the testimony of her mother and sister, jurors were in the best position to assess the truth of her assertions regarding this suffering, given that they could observe her demeanor directly.   We will not second-guess those triers of the facts.



FN1. According to Francois's attorney, the September 27, 2012 videorecorded deposition “wasn't shown to the jury because there is no claim of permanent injury attributed to the bowel or to the bladder or the lack of diagnosis of the bladder.”   Francois herself never testified to her present pain and suffering..  FN1. According to Francois's attorney, the September 27, 2012 videorecorded deposition “wasn't shown to the jury because there is no claim of permanent injury attributed to the bowel or to the bladder or the lack of diagnosis of the bladder.”   Francois herself never testified to her present pain and suffering.


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