A New Jersey appellate court has ordered a new trial in a medical malpractice case where a juror was allowed to serve despite having previously been counsel to the defendant’s insurance carrier.
An Essex County jury no-caused gynecologic oncologist Robert Taylor in a suit claiming he failed to provide informed consent to Sanghamitra Sengupta before removing her uterus, cervix, fallopian tubes and ovaries due to suspicion of cancer.
According to the Appellate Division’s Sept. 14 ruling, during jury selection, after the plaintiff had exhausted all her peremptory challenges, a prospective juror stated that she was reluctant to serve because she was an attorney who represented malpractice carrier Princeton Insurance in coverage disputes. Juror No. 7 nevertheless said she could be fair despite an “allegiance” to Princeton.
Essex County Superior Court Judge Robert Gardner discounted the issue and seated the juror, even after plaintiff’s counsel objected and defense counsel said that Taylor was covered by Princeton Insurance, whose website says it is “New Jersey’s leading healthcare liability insurer.”
The appeals court said Gardner not only erred in failing to excuse the juror with the conflict, but in failing to investigate whether her presence tainted the rest of the jury. Gardner accepted her word that she did not have any discussions with other jurors, and failed to probe if she inadvertently imparted any other information to other jurors, Judges Marie Simonelli, Michael Haas and Greta Gooden Brown said in the unpublished per curiam decision.
After the surgery, the court said, Taylor learned that Sengupta was cancer-free but had a molar pregnancy, a rare and potentially dangerous condition in which an egg with no genetic information is fertilized by sperm but does not develop into a fetus, instead continuing to grow as a lump of abnormal tissue.
The molar pregnancy was confirmed by a pap smear and tissue specimen retrieved from Sengupta and sent to the lab before the surgery. But the results were not received until after the surgery because Taylor did not request them on a rush basis, according to the decision. Although Sengupta signed an informed consent form authorizing the surgical procedure, she claimed Taylor did not inform her that she had the option of putting off surgery until she received the lab results that told her she was pregnant.
Throughout the trial, a representative of Princeton Insurance was seated in the courtroom, the court noted. On the first day of trial, Sengupta’s lawyer noted the Princeton Insurance representative’s presence in the courtroom during a sidebar colloquy, and later he noted on the record that Juror No. 7 appeared to recognize the Princeton representative. The plaintiff’s counsel again objected to the seating of the juror, and defense counsel had no objection to the removal of the juror, but the judge declined to entertain the issue and indicated he would object to that juror serving as an alternate, according to the decision.
On the third day of trial, Juror No. 7 sent the judge a note saying she recognized the Princeton representative. Sengupta’s lawyer, Michael Mangan, moved for a mistrial, but Gardner denied it.
After the no-cause verdict, Mangan moved for a new trial, but Gardner denied that motion, too.
On appeal, Mangan contended that the court’s refusal to remove the juror deprived his client of the right to an impartial, unprejudiced jury.
The appeals court agreed.
Because securing an impartial jury goes to the essence of a fair trial, the court has “an independent duty to act swiftly and decisively to overcome” potential bias, the Appellate Division said.
Mangan, of Mangan Ginsberg in New York, said of the ruling, “I’m impressed by the Appellate Division’s handling of this. This was a civil jury trial—most cases about an unfair jury selection process are in the criminal realm. [The court] made clear that a fair jury trial requires a fair jury selection in the civil context.”
Christine Jones of Farkas & Donohue in Florham Park, who represented the defendant doctor, did not respond to a call about the case.