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Plaintiffs lawyers may have won the latest skirmish in the battle over tort reform — keeping caps off medical malpractice damages — but they’re having a harder time finding jurors who aren’t scarred by the carnage. As doctors stage walkouts, protest at courthouses and lobby legislators and patients, lawyers are trying to expand voir dire to measure the effect of the publicity on venire members’ objectivity. In a Bergen County, N.J., medical malpractice case, for example, a judge this month granted, in large part, plaintiffs lawyer John Blume’s motion to use a questionnaire to probe juror attitudes about tort reform. Blume says a motivating factor for his request was a recent focus group in another case, which found that some people believe caps on damages exist. “We have all this business with doctors striking and the people being concerned about whether their doctor is going to be able to treat them or whether their insurance rates are going to go up,” says Blume, of Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte in Chatham. Judge Charles Walsh, who posted his opinion in Cipriani v. Gagliardi on the judiciary’s Web site, is only the most visible example that judges are weighing the pros and cons of broadened voir dire to test the effects of public attention to the tort reform issue. Plaintiffs attorney Kenneth Andres Jr. says a Burlington County judge asked prospective jurors their views on tort reform and allowed lawyers to ask limited follow-up questions outside the presence of other prospective jurors in a case he tried last spring, Gillece v. O’Connor. The expanded questioning showed that “a good chunk of the jury pool is polluted,” notes Andres, of Haddonfield’s Andres & Berger. Several prospective jurors were removed because they said they were not willing to award more than $250,000 or so, in effect imposing their own caps. It was not even a medical malpractice case but one for auto accident injuries, he says. The bias went both ways. Prospective jurors also were stricken for the view that “there was not enough money in the world to compensate injured people,” says Andres, who declines to name the judge. The impaneled jury awarded $1.88 million on May 2 to Andres’ client, John Gillece, for a leg fracture and traumatic brain injury. The verdict was $1.38 million for pain and suffering and $500,000 for future lost wages. “[T]he insurance industry and the medical society have been able to influence prospective jurors and the only way to have a fair trial is to have real voir dire,” says Andres. His adversary, Thomas Masick, a partner with Parker McCay & Criscuolo in Marlton, did not return calls for comment. Another plaintiffs lawyer, Brian Drazin, president of the Association of Trial Lawyers of America-New Jersey, says that trying an Ocean County medical malpractice case during a doctors’ strike led to a no-cause verdict last February, despite some expanded voir dire. Drazin says he notified Presiding Civil Part Judge Frank Buczynski ahead of time that it might not be a good time to try medical malpractice cases and moved to adjourn his own trial. Judge Edward Oles denied the motion and Drazin then tried to get him to quiz prospective jurors on their attitudes about doctors’ strikes and tort reform. Oles boiled Drazin’s questions down to two or three asking whether prospective jurors had heard about the impending strike and whether they could be fair to both sides, says Drazin, a partner with Drazin & Warshaw in Red Bank. The defendants were the Community Medical Center in Toms River and one of its emergency-room doctors. During the trial, the local newspaper ran a front-page story on how the emergency room had narrowly averted a Jan. 31 shutdown by obtaining new malpractice insurance, after its carrier stopped covering emergency room doctors. The article, “Emergency Room to Remain Open,” appeared in the Jan. 31, 2003, issue of the Ocean County Observer, a weekly newspaper. Drazin says he asked Oles to instruct jurors not to read the article, but points out that jurors entered the courthouse past news boxes displaying it. The case, Cohen v. Community Medical Center, is on appeal. Paul Schaaff Jr., who represents the defendants, acknowledges that he too had initial concern over the strike’s impact, but says Oles’ thorough voir dire left him “comfortable that it was not going to affect the jury’s deliberations.” Oles also asked whether prospective jurors had doctors’ appointments that might be affected, recalls Schaaff, a partner with Orlofsky Moody Schaaff & Gabrysiak in West Long Branch. “Most jurors did not seem to know about the issue and those that did were steadfast in their statements that they would not allow those issues to affect their determination.” Schaaff says he has seen judges in other cases ask sidebar questions about the medical malpractice controversy and has seen prospective jurors excused because they supported caps. But he says he never heard any say they believed caps were in place. Trial lawyer Samuel Davis was on his way to a conference at the Bergen County Courthouse on Oct. 8, 2002, when he encountered a “white coat” rally on the steps. Hundreds of doctors, politicians, insurers and others were gathered in front, handing out brochures while speakers on the courthouse steps used courthouse electricity and New Jersey Medical Society and New Jersey Hospital Association banners hung from the court building, says Davis. A lawyer from his firm, Teaneck’s Davis Saperstein & Salomon, was trying a medical malpractice case inside. “I had a feeling of panic that there were lawyers inside not knowing that their jurors had, in essence, been tampered with,” he says. He complained to the court about the impact on jurors and “the appearance that one side of this issue is supported by the county or the courts.” Administrative Office of the Courts spokeswoman Winnie Comfort calls the incident “an unfortunate confluence of circumstances” and says that, as a result, Bergen County Assignment Judge Sybil Moses decided to limit future demonstrations to the lunch hour and after 4 p.m. and to give closer consideration to possible interference with court proceedings. “These are public spaces,” emphasizes Comfort, adding that many matters that come before courts “could be issues of broad public concern.” AVOIDING ‘WORKSHOPPING’ Court rules give judges broad discretion in jury selection and judges vary widely in what they ask. In the Cipriani case in Bergen County, for instance, Judge Walsh struck or altered some of the questions requested by plaintiffs lawyer Blume. Instead of three questions about knowledge and impact of the physicians’ strikes, prospective jurors will be asked whether they have experienced a situation where medical care was “unavailable or threatened to be unavailable.” Three questions on damage caps were replaced by a query about whether prospective jurors have been asked to sign documents limiting their right to recover. Six questions into their awareness of the tort-reform debate were boiled down to one: “Have you read anything or seen anything on television which suggests that the present way we deal with allegations of medical negligence should be changed?” If yes, they are to give details and say whether their views were influenced. Walsh struck several questions as “an attempt to condition the jury panel.” Those included questions on whether a verdict could affect prospective jurors personally and whether they had a problem with awarding damages for pain and suffering. Blume, who called Walsh “a bit too stringent in getting rid of my questions,” says he had a similar motion flat-out denied in another county, which he declines to identify. Judge Donald Hague, who handled medical malpractice matters in Middlesex from 1996 until he retired last year, says he resisted questions on tort reform because they amounted to “an attempt by questioning to get the jury to go a certain way,” or what he calls “workshopping.” Hague was not comfortable “raising the recent conduct of the doctors” during jury selection because he feared it would give the impression that the court disapproved of the doctors’ actions. Asking jurors about physician strikes is “a loaded question,” says Hague, of counsel at Woodbridge’s Wilentz Goldman & Spitzer, where he arbitrates, mediates and consults exclusively in medical malpractice cases. The compromise Hague arrived at, and one he urged on other judges, was to ask, “Has your experience with the medical profession been either so good or so bad that you cannot be fair to these litigants?” Thomas Hight, president of the New Jersey Defense Association, says Walsh’s decision does not shock him. Plaintiffs almost always try to add “ATLA-type questions” about TV shows and bumper stickers, and about half the judges allow them, says Hight, a partner with O’Meara & Hight in Bloomfield. Defense lawyer Patrick Clare says he has witnessed an increase in the past 18 months in plaintiffs’ pushing for questions on tort reform and he too estimates that judges are asking them about half the time. When asked, many jurors are voicing support for limits on damages, “maybe because they’re tired of the litigious society were living in,” says Clare, a partner with Springfield’s Hardin, Kundla, McKeon, Poletto & Polifroni. Timing matters. “If there’s something occurring down in Trenton or dominating the news media, I might want to know what a juror’s take on reform is myself,” he says. Robert Conroy, general counsel for the New Jersey Medical Society, says plaintiffs lawyers have cause for concern about juror attitudes. “If [jurors] know the system’s broken, the system’s gamed, they might start acting a bit more responsibly,” says Conroy, of Kern Augustine Conroy & Schoppmann in Bridgewater. He also sees trial lawyers’ fear of changing juror attitudes as a mark of success for the tort reform effort and “an encouragement to us to continue.” Some questioning seems meant not to eliminate bias but to influence juries, in Conroy’s view. The defense bar needs to be “more proactive in dealing with attempts by the plaintiffs’ bar to manipulate prospective jurors,” he says. Conroy agrees, however, that “both sides can benefit from more information. It depends on how you ask the question.” Bergen County Civil Presiding Judge Peter Doyne says a Supreme Court committee was formed last month to address “how to best utilize jury voir dire to afford everyone a fair trial.” Doyne, a member of the panel, could not say whether jurors’ reaction to tort reform efforts was a reason for its formation. Meanwhile, the battle is gearing up in the new Legislature sworn in last Tuesday. By the end of last week, at least 15 bills dealing with medical malpractice liability had been filed.

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