SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2611-18T1

KYLIE TAPIA, an infant by her

Guardian ad Litem MARIA TAPIA, 

and MARIA TAPIA and OCTAVIO

TAPIA, Individually,

Plaintiffs-Respondents,

v.

ABU S. ALAM, MD, ABU S. 

ALAM, PA, RICHARD H. 

BLUM, MD, ATLANTIC 

MATERNAL-FETAL MEDICINE 

AT OVERLOOK MEDICAL 

CENTER, ATLANTIC HEALTH 

SYSTEM, and SVETLANA 

PORTNOW, RDMS,

Defendants,

and 

GARRY FRISOLI, MD,

Defendant-Appellant.

______________________________

Argued February 11, 2020 – Decided

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

September 28, 2020
2

A-2611-18T1

Before Judges Hoffman, Currier, and Firko.

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Docket No. L-0694-15.

Beth A. Hardy argued the cause for appellant (Farkas 

& Donohue, LLC, attorneys; Beth A. Hardy, of counsel 

and on the briefs).

Dennis M. Donnelly argued the cause for respondents.

The opinion of the court was delivered by

HOFFMAN, J.A.D.

In this medical malpractice case, defendant Gary Frisoli, M.D. appeals 

from the denial of his motion for a new trial after a jury found him at fault for 

failing to diagnose fetal distress, which would have resulted in the earlier 

delivery of plaintiffs' daughter, Kylie.1 Defendant argues the trial judge 

committed reversible error when she failed to declare a mistrial after his attorney 

became ill during the trial; on a related issue, defendant contends the judge erred 

"in failing to allow [him] to supplement the record concerning [his] trial 

counsel's impairment." Alternatively, defendant contends that errors in the jury 

1

 In this opinion, we refer to Dr. Frisoli as defendant as he was the only 

remaining defendant at trial. Before trial, plaintiffs settled with the attending 

obstetrician, defendant Abu S. Alam, M.D. In addition, for ease of reference, 

we refer to plaintiffs and their children by their given names.
3

A-2611-18T1

verdict sheet and other trial errors warrant reversal. Following our review of 

the trial record and the parties' briefs, we affirm.

 I

In 2006, Maria Tapia became pregnant with twins. At that time, she came 

under the care of Dr. Alam, who delivered her first child. Because of the twin 

pregnancy, Dr. Alam, a general obstetrician, referred Maria to defendant, a

maternal fetal medicine specialist, for prenatal testing, including fetal 

ultrasounds. 

On December 8, 2006, defendant performed a routine anatomy scan at 

twenty weeks and four days gestation, which was within normal limits and 

showed both twins were concordant or growing equally. On March 2, 2007, 

defendant evaluated the growth of the twins at thirty-two weeks gestation; at 

that time, he found a discordancy2in the weight of the twins, as the estimated 

2

 According to defendant, twins normally grow at the same rate during 

pregnancy. "But if there's a difference [in weight] of [twenty] percent or more, 

most of us in maternal fetal medicine would consider that significant in terms of 

discordancy." Plaintiffs' maternal fetal medicine expert, William Roberts, M.D., 

testified that when the difference in weight exceeds thirty percent, "that's 

considered severe fetal discordance." Defendant testified his "calculation of the 

discordancy on [March 2] was [thirty-two] percent."
4

A-2611-18T1

fetal weight (EFW) for Twin A3 had decreased from the fiftieth percentile to 

the sixteenth percentile, while Twin B's EFW had increased from the fiftieth 

percentile to the sixty-sixth percentile. Defendant further noted that Twin A's 

abdomen was "significantly smaller" than Twin B's, "suggestive of asymmetric 

fetal growth restriction."

As a result of these findings, defendant performed a biophysical profile4

(BPP), which was normal for both twins. He also performed umbilical artery 

Doppler studies to assess the blood flow of the placentas, and determined those 

studies were also within normal limits and reassuring. In a report faxed to Dr. 

Alam, defendant advised he wanted to see Maria again in two to three weeks for 

additional ultrasound scans and Doppler studies. In the meantime, he 

3

 In prenatal testing, twins are referred to as "A" and "B." Here, Kylie was Twin 

A and her brother Aiden was Twin B. On March 2, the EFW for Twin A was 

1489 grams and the EFW for Twin B was 2202 grams. 

4

 According to defendant, a BPP involves assessing the "biophysical activities 

or characteristics of the baby," looking "at the fetal tone, fetal movement, the 

amniotic fluid volume, and fetal breathing." On the March 2 BPP, defendant 

scored "a two" for each item, "which is the most you can give. So the score of 

the [BPP] was eight out of eight."
5

A-2611-18T1

recommended that Dr. Alam perform weekly non-stress tests5(NSTs) in his 

office.

The next BPP and Doppler studies were completed on Thursday, March 

22, 2007, when defendant was not in his office. Svetlana Portnoy, a registered 

ultrasonographer, performed the studies in defendant's absence and did not note 

anything requiring immediate communication to a physician. Defendant

reviewed the scans when he returned to the office on March 26. At that time, 

he observed continued discordancy between the twins; however, because Twin 

A had grown 500 grams since the last exam, and the BPP and Doppler studies 

were normal, he found the test results reassuring. Nevertheless, since the 

discordancy now demonstrated borderline growth restriction, defendant 

recommended in his report to Dr. Alam that Maria return in one week for followup scans, and in the interim, that Dr. Alam should perform NSTs "twice a week." 

Unbeknownst to defendant, Dr. Alam never followed his recommendation to 

perform NSTs, as Dr. Alam did not place any clinical value in NSTs when the 

BPP is normal.

5

 Defendant described the NST as "an independent test of fetal well-being . . . 

If it's reactive, it's an indication of . . . the brain's oxygenation." The test looks 

"at whether there are [fetal heartbeat] accelerations with fetal moment. If there 

are, the baby's test is reactive. If [there] are not, it's non-reactive."
6

A-2611-18T1

When Maria returned to defendant on March 30, 2007, her Doppler studies

were abnormal. According to defendant, 

[T]he Dopplers . . . showed me that now there was 

impedance or resistance of placental blood flow across 

the placenta to the baby. That was what caught my eye, 

the abnormal Dopplers. And that abnormal Doppler is 

what made me do a [NST] right [then] and there on her. 

And when I saw that the non-stress test was nonreactive, combined with the abnormal Doppler, that 

. . . precipitated my recommendation to have the baby 

delivered that day as soon as possible, as I felt that there 

was a significant change that I had not seen before.

 Defendant recounted that he then "escorted Maria to labor and delivery," 

called the covering physician,6"explained to him the situation[,] and gave him 

my recommendations to have the patient delivered that day as soon as possible." 

The covering physician delivered the twins later that day. Plaintiffs contend this 

delivery should have occurred four days earlier, on March 26, when defendant 

reviewed the results of the March 22 testing. During those next four days, 

plaintiffs contend Kylie endured increasing hypoxia,7 which caused her to 

sustain severe brain damage. 

6

 Dr. Alam was on vacation.

7

 According to the National Institute of Neurological Disorders and Stroke, 

"Cerebral hypoxia refers to a condition in which there is a decrease of oxygen 

supply to the brain even though there is adequate blood flow." National 
7

A-2611-18T1

At trial, plaintiffs asserted that defendant's failure to timely diagnose and 

treat intrauterine growth restriction8(IUGR) resulted in a four-day delay of the

twins' C-section delivery; a timely C-section would have prevented Kylie from 

sustaining permanent brain damage. Defendant denied all allegations of 

negligence and contended that a preexisting condition, gestational alloimmune

liver disease9(GALD) – a condition that could not be diagnosed prior to delivery

– caused Kylie's brain damage. 

As argued by plaintiffs, and not challenged by defendant, both sides 

appear to agree on the following undisputed foundational facts: 

• On March 30, 2008, for the third time, defendant performed the pre-birth

surveillance test, BPP, which he was using to monitor the well-being of 

the twins.

• Defendant had special, extra training and was a maternal fetal medicine

specialist, and because of that, he had been asked by Maria's regular 

Institute of Health, Cerebral Hypoxia Information Page, 

https://www.ninds.nih.gov/disorders/all-disorders/cerebral-hypoxiainformation-page (last visited Sept. 14, 2020).

8

 According to plaintiffs' neonatology expert, Marcus Hermansen, M.D., IUGR 

refers to a fetus or baby whose fetal weight is "less than the tenth percentile," or 

less than that of ninety percent of fetuses or babies of the same gestational age.

9

 Sarah Taylor, M.D., plaintiffs' pediatric liver disease expert, described GALD 

as a rare disease that onsets during pregnancy and occurs when the mother has 

an immune response that causes certain antibodies to cross the placenta and 

damage the developing liver of a fetus during gestation. According to Dr. 

Taylor, Kylie did not have GALD.
8

A-2611-18T1

obstetrician, Dr. Alam, who would normally deliver the twins, to 

periodically complete BPPs throughout this higher-risk twin pregnancy.

• On March 30, 2008, defendant saw Maria and did a series of tests, which 

revealed three abnormal results for Kylie, two from his BPP and one from

an NST. Defendant considered the results "alarming." Those abnormal 

results were: 

a.) an estimated fetal weight for Kylie of less than the tenth

percentile on the ultrasound component of the BPP;

b.) a failing total score (four out of eight) on the BPP; 

c.) Kylie's fetal monitor tracing was "non-reactive," meaning the 

absence of heartbeat accelerations with fetal movement. 

• As a result, defendant recommended a Caesarian section (C-section) 

delivery "as soon as possible."

• Notwithstanding the C-section delivery, Kylie sustained catastrophic

injuries and remains blind, unable to talk, and confined to a wheelchair.

• Some growth discrepancy between the twins had been occurring for the 

last month of this pregnancy and had progressed to IUGR for Kylie on the 

March 22 BPP, which defendant's technician performed, and defendant

read on March 26.

• Side-by-side growth charts and an immediate post-birth photo of the twins 

visually illustrated the extent of fetal growth discordancy between the 

twins.

According to plaintiffs, beyond these foundational facts, "both sides

completely and diametrically disagreed on what reasonable inferences flowed 

from and must be accepted by the jury from those foundational facts as to both 
9

A-2611-18T1

what was required of [defendant] under the standard of care (negligence) and 

what caused Kylie’s brain damage and when it occurred (causation)."

Plaintiffs' Experts

According to plaintiffs' experts, Kylie's IUGR was caused by nutritional 

placental insufficiency which was depressing her oxygen and would foreseeably 

progress to brain damage. Where there is IUGR, even a perfect BPP score is 

only good for four days. With IUGR, interim fetal surveillance was critically 

important, requiring defendant to urgently call Dr. Alam on March 26, 2008 and 

confirm that his NST results remained reassuring.10 In fact, Kylie was suffering 

sub-acute distress from nutritional insufficiency that was causing her IUGR; by

March 26, 2008, she had already begun suffering early – but still not permanent 

– brain damage from hypoxia. Thus, if done on March 26, 2008, plaintiffs' 

experts opined that Kylie's NST would have been nonreactive, requiring a 

10

 On this point, the opinion of plaintiff's expert was supported by a guideline 

of the American Institute of Ultrasound in Medicine (AIUM), which required 

"important and unexpected" ultrasound results to be "directly" communicated 

"by the interpreting physician [to] the patient's health care provider. 

Communication by phone or in-person is preferred to allow verification of the 

receipt and discussion and should occur in a timely manner." Defendant and 

both parties' experts are AIUM members.
10 A-2611-18T1

delivery on March 26 or 27, 2008, before she sustained permanent hypoxic 

oxygen-deprivation brain damage. Kylie did not suffer from GALD.

Defendant's Experts 

According to defendant's experts, the IUGR on March 22 and 30, 2008, 

was barely below ten percent, was not significant, and did not cause any brain 

damage; instead, the brain damage was caused by GALD. Kylie's perfect eight

out of eight BPP score on March 22, 2008, proved she had not suffered brain 

damage and was good for seven days. Although recommended by defendant at 

thirty-four weeks in this twin pregnancy, interim surveillance by NST was not 

required. Defendant's repeat of BPP in eight days on March 30, 2008, 

constituted good medical practice. Since Kylie had neither suffered brain 

damage in utero nor acute hypoxia at birth based on negative cord blood testing, 

nothing defendant did or failed to do was a substantial factor in causing her brain 

damage or increasing the risk of her sustaining such damage. Instead, 

defendant's experts opined that GALD caused Kylie's in utero IUGR and her 

post-birth liver failure, which led to multi-organ failure and two cardiac arrests 

on day-five to day-six of life, and that alone caused her brain damage.
11 A-2611-18T1

Trial

Counsel for the parties delivered their opening statements on September 

27, 2018. Over the next week, plaintiffs presented the testimony of almost all 

of their witnesses; however, before plaintiffs completed their case, defendant's 

designated trial counsel, Michael Keating (Mr. Keating), was hospitalized in a 

neurological intensive care unit, on the evening of Friday, October 5, 2018, with 

a diagnosis of ischemic stroke. Mr. Keating's condition was successfully 

treated, and he was discharged from the hospital on Sunday afternoon. Since 

the next day was a court holiday, Mr. Keating contacted the trial judge and 

plaintiffs' counsel to inform them of these developments.

On Tuesday, October 9, 2018, after three hours of in-chamber discussions, 

Mr. Keating requested a mistrial, stating, "My client doesn't feel comfortable 

with me continuing to represent him under the circumstances." However, Mr. 

Keating did not state he was medically unable to continue.

At the onset, the trial judge expressed her concerns regarding the fairest 

decision for all parties. She explained that plaintiffs had presented their entire 

case except for one remaining expert, the jury had invested two weeks of their 

time, and if she ordered a mistrial, defendant would gain an "unfair advantage." 
12 A-2611-18T1

The judge requested Mr. Keating provide "proof from a doctor, your 

neurologist . . . that you cannot go forward." 

When the trial judge allowed defendant to state his reasons for wanting a 

mistrial on the record, he confirmed that one alternative to an immediate mistrial 

had already been discussed with him the day before: "In fact [Mr. Keating] 

expressed to me that one option was to request . . . a postponement of the trial 

for one week to see how and if he could get better." Nevertheless, defendant 

said he felt Mr. Keating "was now impaired," and expressed concern that he 

could "suffer another setback of the same type that he had Friday night during 

the remainder of the trial."11

After explaining to defendant that granting a mistrial is "the last resort,"

if there is no lesser way to "save all the work that's been done," the judge 

addressed Mr. Keating:

Obviously[,] you were able to come to court today. 

You talked about having to go to court in another 

county. You spoke sensibly to me at length yesterday 

and sensibly at length today. . . . I see no measurable 

difference in you today than . . . the way you've been 

the last couple of weeks. But I'm not a doctor.

11

 The trial judge explained her reason for allowing defendant to address her 

directly, "I note Dr. Frisoli, when I passed through the courtroom, indicated to 

me that he would like to speak to me. And I . . . said that would be when we 

went on the record, he could address me."
13 A-2611-18T1

In addition, Mr. Keating also had in court that day his pediatric neurology 

expert, David Mandelbaum, M.D., who came from Rhode Island.

Following an extensive discussion, the trial judge did not rule on 

defendant's request for a mistrial; instead, she adopted a "try and see" approach, 

first seeing if Mr. Keating wanted to present the testimony of Dr. Mandelbaum 

out of turn,

12 since he had come to court from out-of-state and was ready to 

testify. While emphasizing she did not "want to stress [Mr. Keating] unduly," 

the judge suggested Mr. Keating consider "starting [Dr.] Mandelbaum. It would 

be great because this jury has been sitting here all day and so has [Dr.] 

Mandelbaum. And . . . [you could] get his credentials and get his opinion[s] . . . ." 

Mr. Keating responded, "I don't know. I mean, if I'm told I have to do it, I have 

to do it." He then appeared to acknowledge the merit of starting Dr. 

Mandelbaum's testimony by stating, "You know, part of the problem is it's not 

easy to get these witnesses in[,]" and noting the "practical matter" that he comes 

"from Rhode Island." 

The judge did not tell Mr. Keating he had to proceed with Dr. 

Mandelbaum; instead, after again noting that Dr. Mandelbaum had been there

12

 At that point, plaintiffs' counsel had already begun the testimony of his nextto-last witness, Kylie's father. 
14 A-2611-18T1

all morning, she replied, "So we could try to do that." Mr. Keating did not object 

to the judge's proposed plan. After lunch, Dr. Mandelbaum's entire testimony 

was completed, notwithstanding the judge's offer to stop after his qualifications,

or at any other point, if Mr. Keating requested. Dr. Mandelbaum opined that 

GALD caused Kylie's brain damage and related injuries. In addition, he testified 

that in studies of children with similar injuries, "more than half will die by age 

[nineteen]" and "fewer than half will live to age [thirty]." 

The next day, October 10, 2018, Russell Hewit (Mr. Hewit), a senior 

partner from Mr. Keating's law firm, appeared at trial, along with Mr. Keating. 

Mr. Hewit informed the judge that Mr. Keating had symptoms of a stroke and 

needed "one to three" weeks of recovery and "two to three" weeks without any 

stressful setting.13 For these reasons, he renewed defendant's motion for a 

mistrial. 

13

 Mr. Hewit did not present any supporting medical documentation at the time

of his application. Just before noon, and after the judge ruled, Mr. Hewit 

presented a brief letter from John Hanna, M.D., the treating physician for Mr. 

Keating. After describing the successful treatment Mr. Keating received, Dr. 

Hanna provided the following assessment:

While the prognosis for a full recovery for Mr. Keating 

is excellent and he is now functional and not in distress, 

he will not have fully recovered from the temporary 

ischemic trauma to his brain during the immediate 
15 A-2611-18T1

After extended discussions, both in chambers and on the record, the judge 

explained the need to explore lesser alternatives to a mistrial. Addressing Mr. 

Hewit, she stated,

You've offered no solution, nothing that can change 

this, just give it a mistrial. You haven't even said to me, 

'Judge can we do this in two weeks?' 

I believed Mr. Keating the minute he called me and 

none of this has to do with any disbelief of anything, 

any representation that he would make to me. It has to 

do with the draconian approach of after three weeks [–] 

all the time, effort and money spent, emotional cost, 

monetary costs, court time, everything [–] 'Judge, grant 

a mistrial, okay?'

At that point, the judge denied defendant's motion for a mistrial, without 

prejudice. Instead, after allowing plaintiffs' counsel to complete the testimony 

of Kylie's father (which took less than twenty-five minutes) and allowing 

plaintiffs' counsel to play the videotape testimony of his causation expert, the 

recovery period, generally one to three weeks assuming 

no further symptoms. For the next two to three weeks, 

Mr. Keating should not be in any stressful setting and 

should not participate in any trials in court.

 
16 A-2611-18T1

judge continued the trial until October 2214 to allow time for Mr. Keating to rest 

and recover.

15

 

After the trial judge confirmed she was denying defendant's mistrial 

application without prejudice, Mr. Hewit advised that "we will inquire of the 

doctors, if there is a reasonable time," if the case were adjourned "for a week or 

ten days, if that would make a difference and I will make that inquiry of the 

physicians." It appears that Mr. Hewit made this statement in response to the 

judge's suggestion of an extended postponement to allow Mr. Keating time to 

recover.

16

 

The transcript for the afternoon of October 10, 2018 indicates the judge 

had a further, in-chambers discussion with trial counsel during the luncheon 

recess regarding Mr. Keating's condition. This occurred after Mr. Hewit 

14

 The judge later changed this date until October 23.

15

 Notwithstanding this accommodation, because defendant's liability expert, 

Arnold Cohen, M.D., was leaving town before then, Mr. Keating requested his 

testimony be taken on Wednesday, October 17. 

16

 Notwithstanding this representation, neither Mr. Hewit nor Mr. Keating 

provided the judge with any further information from Mr. Keating's doctors 

before the jury returned its verdict. Nor did Mr. Keating inform the judge he 

was having any difficulty in completing the trial. 
17 A-2611-18T1

presented the report of Dr. Hanna. Following that discussion, the judge 

announced the following plan:

So here's what I've decided in consultation with Mr. 

Keating and [plaintiffs' counsel]. . . . I'm going to ask 

this jury if they would come back in two weeks and I 

think - - I hope Mr. Keating would be better. . . 

. . . . 

And I have come to this conclusion because of the frank 

discussion that I was able to have in chambers with Mr. 

Keating, who I know is frank and candid with me about 

what's going on and I respect that.

At that point, Mr. Keating presented the video of the de bene esse 

testimony of his causation expert, Joel Lavine, M.D., an expert in pediatric 

gastroenterology and pediatric liver diseases. At the completion of the video, 

the trial judge explained to the jurors that due to "issues with availability," they 

would return in one week, on October 17, to hear the testimony of defendant's 

last expert, Dr. Cohen. After that, they would return the following week, on 

October 23, to hear summations, receive jury instructions, and then deliberate. 

Jury Charge and Verdict Sheet

Prior to charging the jury, the judge and trial counsel discussed the jury 

charges together and came to an agreement regarding how the judge would 

charge the jury. They also worked together to tailor the jury verdict sheet to the 
18 A-2611-18T1

complex facts of this case. No objections were made to the charge or the verdict 

sheet.

Relevant to this appeal, the judge provided the following instruction, in 

pertinent part, regarding the verdict sheet:

[W]e call this a Scafidi17 charge. . . . So the first thing, 

when you're looking at the verdict sheet . . . [d]id the 

plaintiff prove by a preponderance of the credible 

evidence that the defendant, Dr. Frisoli, deviated from 

accepted standards of medical practice. You have a 

choice, and your answer is yes or no. . . . If yes, go to 

question [number two]. Did Dr. Frisoli's deviation 

from the accepted standard of medical practice increase 

the risk of harm posed by [Maria's] preexisting 

conditions? Okay and the answer is yes or no. That's 

the increased risk of harm, that Scafidi charge I was just 

talking to you about. If yes, go to question [number 

three]. Was the increased risk a substantial factor in 

producing the ultimate injury? Yes or no. But of 

course, if the answer is no, you cease deliberations and 

return your verdict.18

After deliberating, the jury returned an inconsistent verdict. Initially, the 

jury answered "yes" to question number one on the verdict sheet – that defendant 

17

 Scafidi v. Seiler, 119 N.J. 93, 108 (1990) (holding that a modified standard 

of causation governs cases in which a defendant's alleged malpractice is deemed 

to have increased the risk of harm from a preexisting condition).

18

 In contrast to the judge's correct instruction, the jury verdict sheet mistakenly 

omitted the direction, "if the answer is no, . . . cease deliberations and return 

your verdict," that should have followed question three. 
19 A-2611-18T1

had deviated from the standard of care – and "yes" to question number two –

that the deviation increased the risk of harm posed by the preexisting condition. 

However, the jury returned an inconsistent verdict, finding that neither the 

increased risk caused by defendant's negligence, nor the increased risk caused 

by Dr. Alam's negligence, was a substantial factor in producing Kylie's ultimate

injury.

Under question number three,19 the "substantial factor" question 

addressing defendant, the verdict sheet incorrectly advised the jury to proceed 

to question number four, without regard to whether the jury found defendant's 

deviation a substantial factor in causing plaintiffs' damages. Consistent with the 

jury verdict sheet instructions, the jury continued to deliberate, and proceeded 

to find both doctors liable, and awarded $20,000,000 in total damages. The jury 

found that sixty percent of Kylie's "ultimate injury" resulted from Dr. Alam's 

deviation from the standard of care and the remaining forty percent resulted from 

defendant's deviation from the standard of care.

When the jury foreperson reported the jury's responses to the questions on 

the verdict sheet, the error in the verdict sheet quickly became apparent to the 

19

 Question number six posed the "substantial factor" question regarding Dr. 

Alam's deviation from the standard of care. The jury answered that question "no" 

as well.
20 A-2611-18T1

trial judge and counsel. The judge acknowledged that if the jury answered no 

to question number three, then the interrogatories should have instructed the jury 

to cease deliberations. The judge explained the inconsistency to the jury:

I don't want to discuss your verdict with you, but you 

might remember that I told you . . . if the deviation was 

not a substantial factor in producing the ultimate injury, 

then you don't recover against Dr. Frisoli or against Dr. 

Alam if you found . . . the same findings for him, too. Did 

Dr. Alam's deviation increase the risk of harm posed by 

[Maria's] preexisting condition[?] ["]Yes, you said.["] 

Was the ultimate injury? ["]No[,] you said.["] So you 

didn't find the three predicates in order to say what portion 

of the ultimate injury is a result of [Dr.]Frisoli or a result 

of [Dr.] Alam, because you found that neither was a 

substantial factor, which would lead you to believe that 

you would come to a different conclusion. But then when 

we came down to[,'D]id Dr. Frisoli prove that some 

portion of Kylie Tapia's ultimate injury was a result of 

the . . . preexisting condition[?'], you said, ["N]o.["] So 

you would find that she didn't have any preexisting 

condition.

In response to the obvious confusion, the judge proceeded to reinstruct the 

jury on proximate cause. There were no objections to the judge's further 

instructions. The parties also agreed the judge would provide a corrected verdict 

sheet to the jurors that informed them to cease deliberation after question 

number three, if they found defendant was not a substantial factor in causing the 

ultimate injury.
21 A-2611-18T1

After further deliberations, the jury returned a second verdict, changing

its answers to questions three and six from "no" to "yes," indicating the 

deviations of defendant and Dr. Alam did constitute a substantial factor in 

producing Kylie's ultimate injury. The jury also returned a revised liability 

apportionment, increasing Dr. Alam's liability to seventy percent and reducing 

defendant's to thirty percent. The total amount of damages awarded remained 

unchanged at $20,000,000.

Post-Trial Motions

On November 13, 2018, Mr. Hewit filed two post-trial applications for 

defendant, a motion to supplement the record and a motion for a new trial. The 

trial judge denied both motions. 

In the motion to supplement the record, defendant sought leave to admit

an October 30 certification from Dr. Hanna and an undated certification from 

defendant. In his certification, Dr. Hanna described a follow-up neurological 

exam he completed on October 16, where Mr. Keating "presented with 

complaints of continuing numbness and tingling sensation." Dr. Hanna stated

that while Mr. Keating "would appear functional, he was not functioning at his 

full capacity" and "would not be expected to be functioning at full intellectual 

capacity for another several weeks." He added that Mr. Keating should avoid 
22 A-2611-18T1

"any stressful setting and should not participate in any trials in court until after 

Thanksgiving . . . ." Dr. Hanna added that he scheduled Mr. Keating "for follow 

up in [six] months."

In his undated certification, defendant said he observed Mr. Keating on 

October 17, 23, and 24, and concluded he "was not functioning at his normal 

level[,] [he] was not as quick thinking, his speech was slow, his affect was flat, 

he would only speak in simple sentences, he could not move from one topic to 

another, was slower in grasping conversation and responding on conversation, 

and lacked energy." Defendant did not provide an explanation for not raising 

his concerns with the trial judge, as he did on October 9.

Mr. Keating also submitted a certification, stating he "continued to have 

symptoms, including numbing and tingling in [his] left arm and weakness on the 

left side of [his face], lack of energy, fatigue and inability to concentrate[,] 

which negatively affected [his] ability to prepare for trial . . . ." Mr. Keating did 

not provide an explanation for his failure to share this information with the trial 

judge.

Addressing the motion to supplement the record, the trial judge recalled 

receiving a call on Columbus Day from a retired judge urging her to speak with 

Mr. Keating:
23 A-2611-18T1

I spoke to [Mr. Keating] briefly. He told [me] what had 

happened. That he was out of the hospital. I said are 

you able to continue? He said I think I am but my client 

doesn't want me to. . . . The next day Mr. Keating was 

here. He indicated he was prepared to go forward. He 

went forward. He did his usual excellent job with the 

witness.

The next day Mr. Hewit appeared [and] [a]sked for a 

mistrial.

. . . .

We . . . were at a juncture in the case where . . . almost 

the entirety of the [plaintiffs'] case had been put in . . . 

[and] some of the defense case [was] in.

. . . .

I spoke with Mr. Keating and [plaintiffs' counsel] in 

chambers, because I really wanted to hear from Mr. 

Keating himself. And all I needed was Mr. Keating to 

say I can't go forward . . . .

In addition, the judge recounted that, before Dr. Cohen testified on 

October 17, she checked to make sure that Mr. Keating was ready to proceed, 

When . . . we returned to [c]ourt [for] the last 

witness . . . eight days later[,] I came to [c]ourt not 

knowing what was going to happen that day. 

Whether . . . the application for a mistrial would be 

renewed, or whether Mr. Keating would tell me that he 

was worse, or not fee[l]ing well, or couldn't go forward. 

I had no idea, but I was prepared to listen to anything.

And the first thing I said to Mr. Keating was, '[H]ow 

[are] you doing? He said okay. I said are we going 
24 A-2611-18T1

forward? He said yes.['] I saw [his] witness in the 

courtroom.

So nobody had contacted me during that period of time 

to let me know that anything was wrong. . . . It was not 

a fait accompli that we were going forward that day. I 

didn't know what was going to happen.

I was pleased and relieved to see that Mr. Keating was 

here, appearing well, and ready to go forward with his 

witness in the courtroom and so we did. And he did an 

excellent job, as usual, in his direct examination of that 

witness.

The judge denied the motion to supplement the record, explaining "there 

is no basis to expand the record. And to suggest that I should consider materials 

that were not available to me to say my decision to deny a mistrial on October 

10th was incorrect . . . is wholly without merit." 

Turning to the recharge, the judge explained that she had "the choice of 

trying to weed through whether or not [the jury] wanted to award [six] million 

to [plaintiff] and her family or whether they did not." She believed it was clear 

the jury wanted to award a sum of money, but the jury was confused on the 

substantial factor questions. She denied the motion for a new trial, explaining,

I think the charge was accurate. I think the decision I 

made was the only decision to be made and I handled it 

in consultation with experienced counsel, with their 

advice and consent in terms of what was to be charged 

when I sent them back in. It was an intelligent jury. . . . 

And I think this is what they intended to do. They 
25 A-2611-18T1

intended to find [defendant] [thirty] percent responsible 

for Kylie's [] injuries and they intended to award the 

amount of money they awarded. 

On January 31, 2019, the trial judge entered an Order for Judgment against 

defendant in the amount of $6,599,625.34. This figure consisted of $6,000,000 

(defendant's thirty percent share of the $20 million damage award), plus his 

proportionate share of stipulated medical bills, prejudgment interest, and offer 

of judgment penalties. 

This appeal followed. Defendant presents the following points of 

argument for our consideration:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

DEFENDANT'S APPLICATIONS FOR A MISTRIAL DUE TO TRIAL

COUNSEL'S MID-TRIAL STROKE, THEREBY DEPRIVING DR.

FRISOLI OF HIS FUNDAMENTAL RIGHT TO A FAIR TRIAL AND

RESULTING IN A MANIFEST INJUSTICE TO HIM. 

POINT II

THE TRIAL COURT ERRED IN FAILING TO ALLOW DEFENDANT 

TO SUPPLEMENT THE RECORD CONCERNING TRIAL 

COUNSEL'S IMPAIRMENT AND CONSEQUENTLY DENIED 

DEFENDANT'S MOTION FOR A NEW TRIAL, RESULTING IN A 

MISCARRIAGE OF JUSTICE.

POINT III

THE TRIAL COURT'S INITIAL JURY CHARGE, WHICH

INCORPORATED AN ERRONEOUS VERDICT SHEET, WAS 
26 A-2611-18T1

IMPROPER AND CLEARLY CAPABLE OF PRODUCING AN 

UNJUST RESULT.

POINT IV

THE TRIAL COURT ERRED IN FAILING TO ACCEPT THE JURY'S

FIRST VERDICT WHICH, BUT FOR THE ERRONEOUS VERDICT

SHEET, WOULD HAVE RESULTED IN A JUDGMENT OF "NO 

CAUSE" OF ACTION IN FAVOR OF DEFENDANT.

POINT V

THE TRIAL COURT'S RE-CHARGE EMPHASIZED PLAINTIFF'S

VERSION OF PROXIMATE CAUSE, IMPROPERLY SUGGESTED

THE FIRST VERDICT WAS ERRONEOUS AND RESULTED IN A 

VERDICT THAT WAS AGAINST THE WEIGHT OF THE 

EVIDENCE.

POINT VI

THE TRIAL COURT IMPROPERLY EMPHASIZED PLAINTIFFS'

VERSION OF LIFE EXPECTANCY AND DAMAGES, 

THEREBYRELIEVING THEM OF THEIR BURDEN OF PROVING 

REASONABLY PROBABLE FUTURE DAMAGES.

POINT VII

THE CUMULATIVE ERRORS OF THE TRIAL COURT DEPRIVED

DEFENDANT A FAIR TRIAL AND WERE CLEARLY CAPABLE OF

PRODUCING THIS UNJUST RESULT IN THE FORM OF A 

MULTIMILLION JUDGMENT AGAINST DEFENDANT.

We have considered these arguments after carefully reviewing the 

extensive trial record. Finding no basis to reverse the denial of defendant's posttrial motions, we affirm those rulings substantially for the reasons stated by 
27 A-2611-18T1

Judge Camille M. Kenny in the oral opinions she delivered on January 7 and 9, 

2016. In addition, contrary to defendant's arguments, we conclude the judge did 

not err in failing to accept the jury's initial verdict, the liability verdict was not 

against the weight of the evidence, and the verdict was not a miscarriage of 

justice. See R. 4:37-2(b); R. 4:49-1(a); Dolson v. Anastasia, 55 N.J. 2, 5-7 

(1969); Dolan v. Sea Transfer Corp., 398 N.J. Super. 313, 329-30 (App. Div. 

2008). We further conclude that none of defendant's remaining arguments 

warrant disturbing the verdict.

 II

"New Jersey courts apply the substantial factor test in medical malpractice 

cases involving preexisting conditions." Reynolds v. Gonzalez, 172 N.J. 266, 

280 (2002). There are three inquiries relevant to the liability of the defendant 

doctors in diagnosing and treating preexisting conditions: 1) whether one or 

more of defendants deviated from the standard of care in failing to diagnose or 

rendering treatment; 2) whether, within a reasonable degree of medical 

probability, their negligence increased the risk or lessened the chance of 

avoiding the harm threatened by the preexisting condition; and 3) whether the 

increased risk of or lost chance to avoid the harm posed was a substantial factor 

in bringing about the harm. See id. at 282-83, 287-88.
28 A-2611-18T1

Where preexisting conditions are at issue, a defendant's deviation "need 

not be the only cause, nor a primary cause, to be a substantial factor in producing 

the ultimate result." Reynolds, 172 N.J. at 288. It is enough that it is a 

"substantial factor," one which is neither remote nor inconsequential and plays 

a "role that is both relevant and significant." Ibid.

In reviewing an order on a motion for a new trial, "[t]he trial court's ruling 

on such a motion shall not be reversed unless it clearly appears that there was a 

miscarriage of justice under the law." R. 2:10-1. An appellate court must give 

due deference to the trial court's "feel of the case[,]" that is, its regard for "the 

jury to pass upon the credibility of the witnesses" and whether "it clearly and 

convincingly appears that there was a miscarriage of justice under the law." 

Carrino v. Novotny, 78 N.J. 355, 361 (1979) (quoting R. 4:49-1(a)); see also

Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson, 55 N.J. at 7

(holding that in reviewing the trial court's denial of a motion for a new trial, "the 

appellate court must give deference to the views of the trial judge . . . ."). Jury 

verdicts should be cast aside in favor of a new trial sparingly and only to prevent 

a clear injustice. Caicedo v. Caicedo, 439 N.J. Super. 615, 628-29 (App. Div. 

2015).
29 A-2611-18T1

"The grant of a mistrial is an extraordinary remedy that should be 

exercised only to prevent manifest injustice." Belmont Condo. Ass'n, Inc. v. 

Geibel, 432 N.J. Super. 52, 97 (App. Div. 2013) (citing State v. Ribalta, 277 N.J. 

Super. 277, 291 (App. Div. 1994)). "An appellate court should not reverse a 

trial court's denial of a mistrial motion absent a clear showing . . . [of] actual 

harm or that the court otherwise abused its discretion." State v. Yough, 208 N.J. 

385, 397 (2011) (internal quotations omitted). 

 III

We begin by addressing defendant's argument that the judge abused her 

discretion in denying his motions for a mistrial. He asserts the judge 

"underestimated Mr. Keating's neurological impairment, which was not 

obvious . . . to a lay person." Additionally, he argues the judge focused 

inordinate attention on other considerations, rather than his right to a fair trial. 

In response to the mistrial motion defendant made on October 9, the judge 

took note of all the time, effort, and money already expended in this substantially 

tried case, and explained that granting a mistrial is "the last resort." She also 

appropriately noted that Mr. Keating was "able to come to court" and "talked 

about having to go to court in another county." She further recounted that Mr. 

Keating "spoke sensibly to me at length yesterday and sensibly at length today." 
30 A-2611-18T1

While acknowledging she is "not a doctor," she noted the absence of any medical 

documentation to support the application. 

Based on the record before her, the judge reasonably exercised her 

discretion by deferring a formal decision on the mistrial application, particularly 

in the absence of any supporting medical documentation. Instead, the judge 

reasonably proceeded with a "try and see" approach, inquiring about the 

possibility of Mr. Keating presenting the testimony of his out-of-state liability 

expert, who was in court and ready to testify, and allowing plaintiffs to finish

their case by completing the testimony of Kylie's father and playing a de bene 

esse videotape of their final expert. Mr. Keating did not object to the judge's 

proposed plan.

The next day, October 10, 2017, Mr. Hewit appeared – not in place of Mr. 

Keating, but with him – and made a second mistrial application. The judge did 

decide this motion and denied it, but without prejudice. In making this decision, 

the judge balanced numerous factors. She considered that plaintiffs had

presented almost their entire case, which would involve significant costs to relitigate, the jury had been at trial for two weeks, and a mistrial would provide 

defense counsel with an unfair advantage because they had an opportunity to 
31 A-2611-18T1

hear the testimony of plaintiffs' experts. The judge also noted the continued 

absence of any supporting evidence regarding Mr. Keating's medical condition.

 After allowing plaintiffs to finish the testimony of one witness and 

present a final expert on video, the judge attempted to accommodate Mr. 

Keating's condition by delaying the trial for almost two weeks. Just before noon,

Mr. Hewit presented a report from Dr. Hanna advising that Mr. Keating needed 

one to three weeks to recover. After receiving this report, and discussing the 

matter in chambers with trial counsel, the judge announced a two-week 

postponement of the trial, a postponement which fell within the two- to threeweek time frame identified by Dr. Hanna. The judge explained that she came to 

her decision "because of the frank discussion" she had "in chambers with Mr. 

Keating." The judge was prepared to declare a mistrial if that result was

indicated, as she later explained, "[A]ll I needed was Mr. Keating to say I can’t 

go forward . . . ."

During the next two weeks, Mr. Keating presented no further 

documentation concerning his medical condition, nor did he advise the judge 

that he could not continue, or otherwise renew the mistrial motion. The judge 

concluded that putting the case off for two weeks, absent further information or 
32 A-2611-18T1

developments, was sufficient to preserve a fair trial, and her decision is entitled 

to deference. 

We are satisfied the judge's decision to deny defendant's mistrial motion 

without prejudice did not amount to an abuse of discretion. State v. Jackson, 

211 N.J. 394, 407 (2012). Defendant has not shown it would be "in the interests 

of justice" to reverse the judge's decision, based upon information that was not 

provided to her. R. 2:10-2. The record contains no credible explanation why 

the information contained in the certifications submitted by defendant in support 

of his post-trial motions was not made known to the trial judge before the trial 

continued with Dr. Cohen's testimony on October 17. The October 30 

certification of Dr. Hanna was based on the October 16 office visit, where Mr. 

Keating "presented with complaints of continuing numbness and tingling 

sensation." These symptoms, and the results of a further examination of Mr. 

Keating, caused Dr. Hanna to conclude, "Mr. Keating should not be in any 

stressful setting and should not participate in any trials in court until after 

Thanksgiving . . . ."20 

20

 Of note, Dr. Hanna's report lists no positive cognitive impairment findings 

on exam from either Mr. Keating's hospital admission or his October 16 office 

visit. In addition, our review of the record of October 9, 2018, and thereafter,

did not reveal any difficulties encountered by Mr. Keating in defending the case.
33 A-2611-18T1

If defendant had an objection to the trial continuing, that objection should 

have been made known to the trial judge, before Dr. Cohen's testimony, and 

certainly before summations. Instead, before Dr. Cohen's testimony, Mr. 

Keating assured the judge he was "okay" and ready to go forward. A party 

should not be permitted to take a chance on a verdict by one jury and then 

complain if the verdict is unfavorable. Lamanna v. Proformance Ins. Co., 364 

N.J. Super. 473, 476 (App. Div. 2003), aff'd, 184 N.J. 214, 222-23 (2005). "'To 

do so would condone a tactic of . . . awaiting the outcome, and then raising the 

issue on appeal when the outcome is unfavorable.'" Id. at 477-78 (quoting 

Walder, Sondak, Berkeley, & Brogan v. Lipari, 300 N.J. Super. 67, 82 (App. 

Div. 1997)). Those concerns are heightened here, where the trial judge received 

direct confirmation from Mr. Keating that he was able and ready to proceed. 

Absent plain error, of which we find none, defendant is not entitled to relief 

from the consequences of chosen trial strategies. See T.L. v. Goldberg, 238 N.J. 

218, 232 (2019).

 Defendant further argues that Rule 4:25-4 applies to this case because, on 

Wednesday, October 9, the trial judge inquired as to whether another attorney 

in Mr. Keating's "very competent firm" might be able to complete the direct 
34 A-2611-18T1

testimony of Dr. Cohen, the only remaining defense witness at that point. After 

Mr. Keating replied, "I don't think so," the judge did not raise the issue again.

R. 4:25-4 provides: 

Counsel shall, either in the first pleading or in a writing 

filed no later than ten days after the expiration of the 

discovery period, notify the court that designated 

counsel is to try the case, and set forth the name 

specifically. If there has been no such notification to 

the court, the right to designate trial counsel shall be 

deemed waived. No change in such designated counsel 

shall be made without leave of court if such change will 

interfere with the trial schedule . . . 

 The purpose of Rule 4:25-4 is to protect attorneys and their clients from 

trial courts compelling them to substitute a partner or associate for an 

unavailable attorney and to proceed to trial, even if the partner or associate was 

unfamiliar with the file or inexperienced in the area of practice. See Harmon 

Cove II Condo. Ass'n Inc. v. Hartz Mountain Indus., 258 N.J. Super. 519, 522 

(1992) (granting an adjournment based on R. 4:25-4 where the designated trial 

attorney was committed to another trial). 

Here, Mr. Keating was not unavailable because of another trial nor did the 

judge force another attorney from Mr. Keating's firm to continue the trial. After 

a two-week delay in the trial, Mr. Keating appeared and did not move for a 

mistrial, nor did he indicate any inability to complete the trial. Thus, we find 
35 A-2611-18T1

this argument clearly lacks substantive merit because the judge did not require 

another attorney to continue the case in place of Mr. Keating. 

Defendant further argues the trial judge erred when she denied his motion 

to supplement the record with evidence regarding his ischemic stroke, which the 

judge should have considered when deciding his motion for a new trial. 

Defendant sought to admit an October 30 report from Dr. Hanna, based on a 

follow up evaluation performed on October 16, which indicated Mr. Keating

continued to have physical symptoms. The updated report concluded that while 

Mr. Keating "would appear functional, he was not functioning at his full 

capacity" and "would not be expected to be functioning at full intellectual 

capacity for another several weeks." Defendant argues that Rule 4:49(a) and 

Rule 1:1-2 permit the supplementation of the record in this instance. 

R. 4:49-1(a) provides:

On a motion for a new trial in an action tried without a 

jury, the trial judge may open the judgment if one has 

been entered, take additional testimony, amend 

findings of fact and conclusions of law or make new 

findings and conclusions, and direct the entry of a new 

judgment. The trial judge shall grant the motion 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. (Emphasis added.)
36 A-2611-18T1

Rule 1:1-2 provides that the Rules of Court "shall be construed to secure 

a just determination, simplicity in procedure, fairness in administration and the 

elimination of unjustifiable expense and delay." It further provides that, 

"[u]nless otherwise stated, any rule may be relaxed or dispensed with by the 

court in which the action is pending if adherence to it would result in an 

injustice." Ibid. "[T]he relaxation provision [of Rule 1:1-2] should be sparingly 

resorted to, particularly when a reasonable interpretation of the complex of 

directly applicable rules meets the problem at hand." Pressler & Verniero, 

Current N.J. Court Rules, comment 2 to Rule 1:1-2 (2021). "Determining 

whether relaxation is appropriate . . . requires an examination and balancing of 

the interests that are at stake." State v. Williams, 184 N.J. 432, 443 (2004).

Defendant's argument pursuant to Rule 4:49-1(a) is misplaced because it 

applies to bench trials. Turning to Rule 1:1-2, we discern no basis for permitting 

a post-verdict supplementation of the trial record with information that could 

have been provided before the jury rendered its verdict. The trial judge made a

rational decision based on the information she had at the time of the mistrial 

motions. She appropriately balanced all the interests at stake and came to a 

reasonable conclusion to continue the trial for two weeks, in the reasonable 

expectation that the postponement would fairly accommodate everyone's
37 A-2611-18T1

interests. The judge appropriately considered the enormous expense involved if 

she granted a mistrial and the fact that defendant would gain an advantage by 

having seen essentially plaintiffs' entire case. The judge, who denied 

defendant's mistrial motion without prejudice, reasonably expected that she 

would be informed if Mr. Keating's condition did not allow him to complete the 

trial, after the extended postponement. We are satisfied that rejection of the 

requested relaxation of the rules did not create an injustice. 

Defendant argues for the first time on appeal that the original jury charge 

"was improper and clearly capable of producing an unjust result." Additionally, 

defendant asserts the verdict sheet was improper based on "the absence of the 

instruction after question [number three] to cease deliberations if the jury found 

the increased risk of harm from Dr. Frisoli's deviation from the standard of care 

was not a substantial factor in producing the ultimate injury . . ." which would 

have resulted in a no cause. 

When a defendant fails to object to a jury charge at trial, we review for 

plain error, and "disregard any alleged error 'unless it is of such a nature as to 

have been clearly capable of producing an unjust result.'" State v. Funderburg, 

225 N.J. 66, 79 (2016) (quoting R. 2:10-2). Plain error, in the context of a jury 

charge, is "[l]egal impropriety in the charge prejudicially affecting the 
38 A-2611-18T1

substantial rights of the defendant and sufficiently grievous to justify notice by 

the reviewing court and to convince the court that of itself the error possessed a 

clear capacity to bring about an unjust result." State v. Camacho, 218 N.J. 533, 

554 (2014) (alteration in original) (quoting State v. Adams, 194 N.J. 186, 207

(2008)).

When reviewing any claim of error relating to a jury charge, "[t]he charge 

must be read as a whole in determining whether there was any error[,]" State v. 

Torres, 183 N.J. 554, 564 (2005), and the effect of any error must be considered 

"in light 'of the overall strength of the State's case.'" State v. Walker, 203 N.J. 

73, 90 (2010) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). These jury 

charges must provide a "comprehensible explanation of the questions that the 

jury must determine, including the law of the case applicable to the facts that 

the jury may find." Dubak v. Burdette Tomlin Mem'l Hosp., 233 N.J. Super. 

441, 456 (App. Div. 1989) (quoting State v. Green, 86 N.J. 281, 287-88). 

However, an attorney's failure to object to jury instructions not only "gives rise 

to a presumption that he did not view [the charge] as prejudicial to his client's 

case[,]" State v. McGraw, 129 N.J. 68, 80 (1992), but is also "considered a 

waiver to object to the instruction on appeal." State v. Maloney, 216 N.J. 91, 

104 (2013).
39 A-2611-18T1

The record reflects the trial judge carefully tailored the Model Civil Jury 

Charges to the specific facts of the case. We discern no error or prejudice that 

resulted from the judge's instructions. 

The judge and counsel created the jury verdict sheet, again tailored to the 

specific issues presented by the case. Unfortunately, at some point in working 

on the verdict sheet, the instruction that should have followed question three

("if the answer is no, . . . cease deliberations and return your verdict") was 

mistakenly omitted.

Notwithstanding the error in the jury verdict sheet, the judge instructed 

multiple times that if the jury found defendant was negligent and increased the 

risk of Kylie's brain damage, but that the impact of that increased risk was 

inconsequential and was not a substantial factor in causing that brain damage, 

then the jury should stop their deliberations and not apportion liability or award 

damages. The judge explained to the jury the two conflicting theories on 

causation and reviewed the Scafidi factors. Additionally, when the judge 

explained the verdict sheet to the jury, she did in fact advise the jury to stop after 

question number three if the jury found defendant was not a substantial factor in 

causing Kylie's injuries. Thus, since the jury returned a verdict with an 
40 A-2611-18T1

inconsistent result, due to the mistake on the initial verdict sheet, we find no 

error in the jury charge.

Defendant contends the trial judge committed error when she rejected the 

jury's initial verdict as inconsistent. We disagree. A jury's verdict may be 

considered inconsistent if "there is no ready, logical or practical manner" in 

which different parts of the verdict "can be reconciled." JMB Enters. v. Atl. 

Emp'rs Ins. Co., 228 N.J. Super. 610, 616 (App. Div. 1988) (citations omitted). 

The record here fully supports the trial judge's determination that the jury's 

initial verdict constituted an inconsistent verdict.21

In Mahoney v. Podolnick, 168 N.J. 202 (2001), our Supreme Court 

reviewed a jury medical malpractice verdict against two defendant doctors. 

During trial, the jury found both defendants negligent and that their negligence 

was a proximate cause of the plaintiff's loss of chance. Id. at 205. The jury 

awarded the plaintiff $700,000 in damages and the defendant moved for a 

judgment notwithstanding the verdict or a new trial. Ibid. The trial judge 

21

 Once the jury rejected defendant's contention that GALD caused Kylie's 

injuries, and found that defendant and Dr. Alam were both negligent and that 

their negligence increased the risk of harm posed by Kylie's IUGR, then the jury 

had to accept plaintiffs' theory of the case – that non-stress testing was urgently 

indicated on March 26, and would have resulted in a C-section delivery before 

Kylie sustained permanent brain damage from hypoxia.
41 A-2611-18T1

vacated the verdict. On the retrial, the jury entered a no cause verdict. The 

plaintiff's appealed, attempting to reinstate the first verdict. We upheld the trial 

court's initial verdict, but the Supreme Court reversed. Id. at 206.

At the conclusion of the first trial, the jury returned an inconsistent 

verdict. The jury answered no to the substantial factor proximate cause 

question, but apportioned a percentage to that defendant. Id. at 210-11. The 

trial judge compared the jury's no vote on question three with the apportionment 

of liability set forth in question number seven and told the jury:

[T]here's an inconsistency in the verdict. In number 

seven you attributed a percentage to Dr. Podolnick, and 

if you remember I told you, if it's not in the instructions, 

not written in the instruction, that you could assess a 

percentage on that question only if you had answered 

yes to all three in each grouping, that is, one, two and 

three about Dr. Podolnick or four, five and six for Dr. 

Landset. So you allocated 15 percent to Dr. Podolnick 

on the one hand while--on the one hand by virtue of 

your answer to question number three you determined 

that Dr. Podolnick was not responsible for reducing 

Elaine Brown's increased life expectancy, but then on 

the other hand on seven B you allocated a percentage 

of responsibility for that, so those two are inconsistent, 

so you can't do it that way.

[Id. at 211.]

The trial judge sent the jury back for further deliberations, instructing 

them either to eliminate the percentage assigned to that doctor or to reconsider 
42 A-2611-18T1

their finding with respect to whether that defendant was a substantial factor in 

causing the plaintiff's harm. As a result, the jury changed its response to the 

substantial factor question. The Supreme Court concluded, 

After being told that the jury verdict was inconsistent, 

the trial court instructed the jury that it either could 

change the allocation of percentages on question seven 

or, alternatively, change its answer to question three. 

The jury followed the court's instruction and returned 

with a new verdict that corrected the response to 

question three. Even though the jury's original verdict 

was inconsistent, the trial court appropriately 

reinstructed and resubmitted the questions to the jury 

"to assur[e] consistent answers accurately reflecting the 

jury's findings."

Id. at 222 (quoting Roland v. Brunswick Corp., 215 N.J. 

Super. 240, 244 (App. Div. 1987)).

The Court emphasized that the jury was capable of following the trial 

judge's curative instructions and capable of continuing "deliberations anew after 

they have already engaged in deliberations . . . or to disregard prior 

determinations in readdressing issues." Ibid. (citation omitted). The Court 

found the trial judge remedied the inconsistency in the initial verdict sheet by 

sending the jury back to the jury room for further deliberations. Id. at 223. 

In Dubak v. Burdette Tomlin Memorial Hosp., 233 N.J. Super. 441 (App. 

Div. 1989), the plaintiff sued a bar and its bouncers alleging they failed to 

prevent an assailant from attacking and killing his son in the bar's parking lot. 
43 A-2611-18T1

Id. at 444. The jury returned a verdict finding the defendant was not negligent, 

but also allocated thirty percent fault to the bar and the bouncers. Id. at 454. 

The trial judge explained the inconsistency to the jury and told them to return to 

the jury room to reconsider their position. The jury sent a note to the trial judge 

explaining what they believed to be inconsistency with the jury sheet. Id. at 

455. The judge responded by asking whether the failure was a proximate cause 

of the decedent's injuries, and the jury responded yes. Ibid. As a result, the 

judge entered judgment against the defendants. Ibid. On review, we affirmed 

finding "no error in the procedure employed by the trial [judge] in its attempt to 

determine the basis of the apparent inconsistency in the jury's original findings." 

Id. at 455. We stated:

We perceive no abuse of discretion here. Faced with 

the logical incongruity in the jury's original answers to 

interrogatories, the trial court was obliged to explain 

the difficulty and, upon proper supplemental 

instructions, to require it to reconsider its responses in 

light of the law. The court's inquiry and the 

supplemental instructions given were entirely 

appropriate.

[Id. at 456. (internal citations omitted).]

Here, after conferring with the attorneys, the judge brought out the jurors, 

explained the inconsistency in their verdict, and asked them to retire and 

continue their deliberations. This procedure the judge employed – explaining 
44 A-2611-18T1

to the jurors the nature of the inconsistency in their verdict and instructing them

to continue their deliberations – was clearly appropriate and consistent with both 

Mahoney and Dubak.

The trial judge believed that the jury intended to find for plaintiffs and 

concluded the jury was confused generally regarding the substantial factor 

question. She proposed adding language under question number three, that if 

the jury found defendant's conduct was not a substantial factor in causing Kylie's

injury, the jury should cease deliberating. Both parties agreed with the 

amendment of the verdict sheet and that the change would address the 

inconsistent verdict. Thereafter, the judge explained the inconsistency to the 

jury and then recharged the jury on the applicable law that related to question 

number three on the verdict sheet. The jury returned its verdict by changing its 

answer to questions three and six and reduced defendant's liability 

apportionment from forty percent to thirty percent. We conclude the judge 

reconciled the inconsistencies by providing an appropriate supplemental charge

and by submitting a revised verdict sheet.

Any arguments not specifically addressed lack sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.