Mitchel Ostrer Mithcel Ostrer

A New Jersey appeals court on Nov. 3 upheld $1.5 million in compensatory damages awarded to a brain-damaged woman whose doctor had an improper sexual relationship with her, but said the jury’s decision to award her another $1.7 million in punitive damages must be revisited.

A three-judge Appellate Division panel, in an unpublished decision, said it saw no reason to disturb the compensatory damages award, even though the plaintiff, during her trial testimony, made an improper reference to a purported settlement offer allegedly made by the defendant, Dr. Jonathan Fellus.

Fellus, as a result of his sexual relationship with the plaintiff, identified only as L.S., has since had his license to practice revoked by the state Board of Medical Examiners, according to the court.

In short, the appeals court said there was ample evidence to show that Fellus coerced L.S. into having a sexual relationship with him, despite her brain injuries and his ethical obligations to avoid such patient relationship.

“In various ways, the jury could find that defendant made this obviously bad conduct worse,” wrote Appellate Division Judge Mitchel Ostrer. “There was sufficient evidence for the jury to conclude he exploited a susceptible patient; pushed aside impediments to the sexual relations; continued despite signs he was harming plaintiff; and took actions that served his own self-interest rather than his patient’s.”

One of Fellus’ actions, Ostrer said, was to persuade L.S. to get an abortion after she became pregnant during their relationship.

Appellate Division Judges Clarkson Fisher Jr. and Francis Vernoia joined in the ruling.

L.S., who was suffering the effects of a car accident, began treatment with Fellus, a neurologist, in 2008, and the two began having a sexual relationship that lasted about five months, according to the ruling.

Eventually, after L.S. ended the relationship following her abortion, she sued Fellus for medical malpractice and related charges.

Several years after she ended the relationship, she alleged in her lawsuit that Fellus began stalking her. The stalking allegations were brought up during L.S.’s trial testimony, and became the key point on Fellus’ appeal.

Fellus’ attorney, Evan Goldman, asked L.S. why she thought there was a gap between the end of the relationship and the beginning of the alleged stalking, according to the decision.

“I refused an offer of $750,000,” L.S. replied, before getting cut off, the decision documented.

Goldman, of Goldman, Davis & Gutfleish in Hackensack, immediately asked for a mistrial, which Superior Court Judge Thomas Vena denied. Instead, the judge offered a curative instruction. Instead of telling the jury it should ignore the statement, he offered an explanatory instruction that said, in essence, that settlement offers were common in a litigation setting.

The jury later awarded L.S. the compensatory and punitive damages awards, and Fellus appealed, arguing that he was prejudiced by L.S.’s statement about the purported settlement offer, which Fellus denied making.

The appeals court rejected that argument.

“Under the totality of the circumstances, we conclude the court’s instructions sufficed, the court’s determination to deny a mistrial or a new trial is worthy of our deference, and reversal is not required to avoid a manifest injustice,” Ostrer said.

The appeals court opined that offering an explanatory instruction could be considered better than having the judge tell the jury to ignore L.S.’s statement about the settlement offer.

“An instruction is … more effective when it explains itself,” Ostrer said. “‘Because I said so’ is likely to be even less effective with a jury than it is when a parent says it to an 8-year-old.”

The appeals court remanded the award of punitive damages for further hearings, saying there has to be a more detailed analysis as to whether the size of that award is justified, especially since the Legislature’s intent behind the enactment of the Punitive Damages Act was to limit the size of those awards.

Goldman said he plans to ask the state Supreme Court to hear the case.

Goldman said the appeals court ruling needs to be overturned because of the precedent it sets, even though the ruling is unpublished.

“It opens the door for other plaintiffs or defendants to be able to bring out settlement offers during the course of cross-examination,” he said. “Here, there was an admission of responsibility” that the jury should not have heard, he said.

L.S.’s attorney, Dennis Donnelly, applauded the ruling.

“It was a comprehensive review of the law on cautionary instructions,” said Donnelly, of the Donnelly Law Firm in Summit.