SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 17 T1 LAUREN GILL HAYSER and JOHN HAYSER, Plaintiffs

- Appellants / Cross

- Resp ondents,

v. GLENN PARKER, M.D., JEFFREY LIN, M.D., ATLANTIC SURGICAL GROUP, P.A., KAREN BURKE, R.N ., TRISHA NOVELLO, R.N ., PATRICIA SPINA, R.N., ERIN CONROY, R.N., SOONMI LIN, R.N. , and OCEAN MEDICAL CENTER, Defendants

- Respondents, and
THOMAS LAKE, III, M.D., Defendant

- Respondent / Cross

- Appellant.

____________________________ _

Argued November 17, 2020

– Decided

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute preced e nt or be binding upon any court

. " A lthough it is po sted 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

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February 3 , 202 12 A

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- 17T1 Before Judges Fisher, Gilso n , and Gummer. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L

- 2926

- 14. Jonathan H. Lomurro argued the cause for appellants/cross

- respondents ( Lomurro, Munson, Comer, Brown & Schottland, LLC, attorneys ; Jonathan H . Lomurro, of counsel; Christina Vassiliou Harvey, of counsel and on the brief s ; Kristen M. Gaffey and Alan J. Weinberg , on the brief ). Kenneth M. Brown argued the cause for respondent s Glenn Parker, M.D

. , and Atlantic Surgical Group, PA ( Weber Gallagher , attorneys ; Kenneth M. Brown , of counsel and on the brie f ; Peter Espey, on the brief ). Sharon K. Galp ern argued the cause for respondent Jeffrey Lin , M.D. ( Stahl & DeLaurentis , PC , attorney s; Sharon K. Galpern, on the brief). Michael E. McGann argued the cause for respondents Karen Burke, R.N., Trisha N o vello, R.N., Patrice Spina , R.N. , and Ocean Medical Center ( Orlovsky, Moody, Schaaff, Conlon & Gabrysiak, attorneys ; Michael E. McGann, of counsel and on the brief; Anthony W. Liberatore, on the brief ). Herbert Kruttchnitt III argued the cause for responden t s Erin Conroy , R.N. , and Soonmi Li m , R.N. 1 ( Dug hi, H ewit & Domalewski, attorneys ; Herbert Kruttchnitt III, of couns el and on the brief; Shawna K. Bishop, on the brief ).

1 In the complaint plaintiff s identified this de fenda nt as Soonmi Lin, R.N. However, in her appellate brief, she identifies herself as Soonmi Lim, R.N. We refer to her as Soonmi Lim, the name she uses in her brief.3 A

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- 17T1 Thomas J. Heav e y argued the cause for respondent/cross

- appellant Th omas Lake, III, M.D. ( Grossman, Heavey & Ha l pin, PC, attorneys ; Thomas J. Heavey, of couns el an d on the brief s ; Morgan Rose Montano, on the brief s ).
PER CURIAM After having surgery for the removal of a cancerous tumor, Lauren Gill Hayser (plaintiff) experienced post

- surgical complications stemm i ng from a bowel leak that caused an infection

. Pla intiff and her husband John Hayser (collectively plaintiffs) assert that defendants were negligent in their pos t

surg ical treatment of her , specifically in their purported failure to monitor, investigate, or report post

- operative signs of infection

. After an eleven

- day trial, a jury found no deviation f r om the acc epted standards of practice. Pla i ntiff s appeal that no

- cause judgment and the trial judge's subsequent denial of their motion for a new trial , a rguing that the verdict was against the weight of t he evidence and that they were deprived of a fair trial by e rrors made in the jury

selection process and during the trial

. Defendant Thomas Lake III, M.D., cross appeals the trial judge's denial of his m o tion for involuntary dismissal under Rule 4:37

- 2(b) . For the reasons that follow, we affirm

.4 A

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- 17T1 I. On May 2 8 , 2013, Dr. Lake, a colorectal surgeon with defendant Atlantic Surgical Group, P.A. ( Atlantic Surgical Group) operated on plaintiff at Ocean Medica l Center, perform ing a bowel resection to remov e a m alignant tumor

. After surgery, plaintiff was placed in t he post

- anesthesia care unit. Dr. Lake wrote a post

- operative order detailing the care to be provided to plaintiff by the nursing staff, including standing order no. 48, which directed staff to call a
surgeon if a patient was tachycardic, meaning had a heart rate that exceeded 120 beats per minute

. Hospital protocol also required a nurse to notify a physician if a post

- operative patient's white blo o d count or pulse rate bec a me elevated.
Later that day , plaintiff was tran sferred to a medical/surgical floor in the hospital. Over the next two days, pla i ntiff continued to improve and showed no signs of a bowel leak or infection. Defendant Soon mi Li m , R.N. , care d for plaintiff on the evening of M ay 30 , 2013

. Lim did not co ntact a surgeon when plaintif f 's heart rate reached 122 at 8:00 p.m. ; when her heart rate was noted at 10:43 p.m. on her chart it was 98. Defendant Erin Conroy, R.N., began to care for pla i ntiff the following mornin g. Lab repo rt s f

rom blood taken the prior evening showed that plaintiff 's white5 A

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blood count had increased to 15,700 per microliter of blood

. A normal range is 4,500 to 11,000 per microliter of blood. On May 31, 2013, d u ring morning rounds, d efendant Jeffrey Lin, M. D., a general surgeon with Atlantic Surgical Group , ordered that pla i ntiff 's cardiac monitor be discontinued . Nursing staff would continue to check her vital signs every four hours. Dr. Lin testified that an elevated heart rate of 122 and a white blood c ount of 15,700 did not indicate a bowel leak because plaintiff was making clinical progress, did not look sick, was healing, was not tired or confused, and had normal kidney function

. He stated that even if h e had known about plaintiff 's tachycardic episo de , h e would not have ordered a CT scan to determine if she had a bowel leak based on that single number, noting that an elevated heart rate can be caused by pain, exertion, and anxiety as well as infection. At 4:00 p.m. on May 31, 2013, plaintiff 's h eart rate increased to 132. Nurse Conroy did not contact the surgeon s regarding the elevated heart rate or white blood count and did not include the tachycardi c episode in her notes. That evening, while nurs e Lim cared for her, plaint iff had several sust ained tachycardic episodes . Nurse Lim did not call the surgeons or document those episodes in her n otes, but the information was available on computerized6 A

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hospital records. By 4:00 a.m. on June 1, 2013, plai n tiff 's heart rate had fall en
to ninety

- seven , which was within the normal range. During that day, while defendant Trisha Novello, R.N. , cared for her, plaintiff 's heart rate was normal, she reported a pain level of zero, and she did not have a fever, bu t lab reports from blood taken the prior evenin g ind icated that her white blood count had increased to 22,000 per microliter of blood

. During rounds that afternoon defendant Glenn Parker, M.D. , a colorectal
surgeon with Atlantic Surgical Group , examined p l aintiff . He reported in his progress notes th at sh e was awake and alert and had normal vital signs, including a pulse of ninety

- six , her incision was healing appropriately , and her ostomy was functioning properly. He also noted that her white blood coun t was 22,000
p er microliter of blood. He recom mende d that she be di scharged that day, wrote a discharge order, gave her a prescription for Percocet for pain, and ordered that she have follow

- up care with visiting nurses

. She was discharged that afternoon
"in stable condition

. " Defendant nurses Novel lo, P atricia Spina, R.N., and Karen Burke, R.N., assisted in the discharge. Nurse Burke no ted that at the time of discharge plaintiff had no complaints of pain and was alert , oriented , and excited to go home. Non e of the nurses alerted the doctors to pla intif f 's elevated white blood count.7 A

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On June 3, 2013 , plaintiff called the Atlantic Surgical Group and spoke with Dr. Lake

. She asked for a different pain medication because Percocet was not agreeing with her. She testified that she called also becau se he r legs were swollen, but written note s from the call do not reference any report of swelling in her legs or increased pain. The visiting nurse who saw plaintiff that day did not document any increased pa i n or swelling of her legs. On June 6, 2013, plai ntiff called again and spoke with Dr. Parker. She asked for a prescription for antibiotics because a malodorous fluid was draining from her incision line. Dr. Parker told her that he would not prescribe an antibiotic over the telephone and advised h er ei ther to come to the office or to go to the emergency room. She did not follow that advice. Later that day , when her parents attempted to assist her out of bed, fluid sprayed out of her abdomen

. Her mot h er called an amb ulance, and plaintiff was take n to the emergency room
at Jersey Shore University Medical Center. When she arrived at the emergency room, plaintiff was in septic shock, feculent discharge wa s coming from her in cision , her abdomen was dis t ended and tender, her white blood count was 26 ,000 per microliter of blood , she was tachycardic, and her blood pressure was low. Dr. Parker performed emergency
surgery and found where the bowel had been rese cted a 1.5 cm hole and an8 A

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anastomotic leak , wit h fecal matter flow ing into her peritoneal cavi ty

. He removed the rest of her colon because it was ischemic, took out the colostomy, and created a new ileostomy on the other side of her abdomen. Plaintiff remained intubated and sedated for a week, was di s charged eighteen days after the surgery, and s tayed at a rehabilitation facility for eight days. Plaintiff s filed a complaint alleging medical negligence against plaintiff 's treating physicians, Drs. Lake, Lin, and Parker, and their medical group, Atla n tic Surgical Group, and against her treating n urses Burke, N ovell o , Spina, Conroy, and Lim, and Ocean Medical Center. Plaintiffs' colorectal surgical expert opined that each of the doctors had deviated from the accepted standard of practice: (i) Dr. Lin , by failing to investigate an intr a - abdominal cause of plaintiff 's elevated white blood count and failing to order a CT scan to determine if she had an abdominal leak ; (ii) Dr. Parker , by discharging plaintiff when her white blood count was almost twice t h e normal range ; and (iii) Dr. Lake, by failing to r ecognize that plaintiff's report of increased pain and swollen legs was a possible sign of abdominal infection. Plaintiffs' nursing expert, Lisa Homa, R.N., opined that the nurses deviated from accepted s tandards of nursing practice : (i) defendants Lim a nd Conroy b y failing to assess, monitor, and communicat e to a doctor plaintiff 's tachycardia and elevated white blood count9 A

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during their shifts ; and (ii) defendants Novello, Spina, and Burke by fai ling to advise doctors that plaintiff 's white blood co unt w as reported as elevated during their shifts and that sh e had previously had episodes of tachycardia. After an eleven

- day trial , 2 the jury returned a verdict finding that plaintiffs had not proven any d e fendant deviated from the accepted standards o f pra ctice. Having found no deviation, the jury did not reach the remaining questions on the verdict sheet regarding proximate causation or damages . The trial judge entered a final judgment dismissing p laint i ffs' claims with prejudice based on the jury's verd ict. He denied p laintiffs ' subsequent mo tion for a new trial pursuant to Rule 4:49

- 1 and to vacate the judgm ent. II. On appeal, plaintiff s argue they are entitled to a new trial because the trial judg e committed err ors in the jury

- selection proces s , du ring the trial , and in denying plaintiffs' motion to reopen their case and motion for a new trial

. A. We begin our analysis by addressing plaintiffs' argument that the jury

selection p rocess was fla w ed and led to an unjust result. Plaintiffs fa ult t he

2 Prior to opening statements , Dr. Pa r ker reached a settlement with plaintiffs. Atl antic Surgical Group remained in the case for its alleged vicarious liability for Dr. Parker's actions.10 A

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judge for both compelling too many sidebar conferences and for doing too much in open court. Plaintiffs also argue the judge erred by not correctly adjusting the number of plaintiffs' pe remptory chall e nges in light of the numerosity of similarly

- s ituat ed defendants and by failing to respond to jury bias against plaintiffs. We see no evidence that the jurors who were impaneled

– none of whom plaintiffs sought at any time to be excused

– w ere biased aga i nst plaintiffs or their counsel or were otherw ise t ainted. Before jury selection began , plaintiffs requested additional peremptory chall enges, asserting that defendants had a "concerted similar interest" and that plaintiff s , thus, w ere entitled to addit i on al challenges under Velazquez v. Portadin , 1 63 N. J. 677 (2000). The trial judge did not deny plaintiffs' request but indicated that he was inclined to grant it "once you have exhausted your challenges," stat ed he would determine the number of additiona l challenges to grant "depend[ing] on what the lands cape looks like at that time, a s to how many the defense has exercised," and concluded that "the playing fiel d" was "not level" and that plaintiffs "would be entitled to additional challenges." Plaintiff s ' counsel did not object to that procedure. A fter plaintiffs' counsel had made his sixth peremptory challenge, he reminded the judge that he had used his last challenge. The judge told him : "once we go through this you can make an11 A

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application for addit i onal [j]urors after we've gon e through everybo dy. It's premature. It's not your turn yet." Counsel did not object but thanked the judge. Plaintiffs' couns el subsequently asked for a sidebar conference , seeking to make a belated request to strik e a j u ror for cause and to renew his application for addi tional peremptory challenges

. When the judge granted his request to strike the juror for cause, counsel did not renew his application for additional challenges. The judge proceeded with voir dire of add i tional potential jurors. Later in the proce ss, p laintiffs ' counsel asked for a side bar and advised the judge that he had seen juror number four turn to other jurors and refer to him as "a piece of shit." After conducting an off

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- record conference w i th counsel outside the presence of the jurors, the judge questioned the jurors ind ividually, beginning with juror number four , who admitted he had made these comment s
to a juror behind him : "here we go again," "[e]verybody just goes to sidebar," "why don ' t they just ask whoever want s to serve to rais e the ir hand and they cut out all th is stuff , " "everybody agreed but that guy," indica ting plaintiffs' counsel, and "there we go, he's getting rid of somebody else again." He denied making any other comment a b out plaintiffs' counsel. Four jurors told th e jud ge that they had not heard juror number four 's
comments. Four jurors told the judge that they had overheard jur or number12 A

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four 's comments, but that the comments would not impact their ability to be fair

a n d impartial. None of them reported hearing ju ror n umber four call plaintiffs' counsel a "piece of shit." Jur or number three understood that jur or number four was "upset" with plaintiffs' counsel because "everybody else was okay with the [j]ury , " but she thought that juror number f our 's comment was u nfair because plaintiffs ' lawyer was doing his job . J uror number eight overheard jur or number four say that plaintiff's counsel was " picky " or a " pain " but stated that if he were
h er attorney, she would want h im to be picky

. J uror number six said that he had heard a comment in reference to an attorney that "I can't believe he's doing that, doing another exception or exclusion again , " and told the judge that although he understood juror number four 's frustrati o n "from being here , " he thought counsel were d oing their job s "to vet the [j]urors as best they can. " Juror number five could not recall specifically what was said but described it as "like jokingly, oh

come on, it's taking forever or that kind of thing. " Like the other j urors who had heard somethin g, sh e confirmed that the comments would not impact her ability to be fair and impartial. Plaintiffs' counsel moved to excuse only juror number four . The judge granted that motion. Plaintiffs' counsel did n o t move to excuse

a ny other juror.13 A

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Before jur y sel ection resumed, plaintiffs' counsel reminded the judge that he had used all of his challenges, and the judge responded, " [ w ] ell, yes. All right." After questioning her, the judge excused the remaining p o tential juror from the first panel for cause a nd br ought up a second panel of potential jurors. The judge excused one potential juror for cause at plaintiffs' counsel ' s request. The judge excused another potential juror aft er she had stated that defenda n t Ocean Medical Center "saved my husband's lif e." Plaintiffs' counsel later
expresse d a concern that that comment was made in open court. The judge responded: "People go to hospitals, they save lives. I mean, that's why w e go to hospitals. That's not unduly prejudicial. I'm going to caution ever ybody that they have to be fair and impartial and listen to the law. I'm not going to grant []
an app lication f

or that." Plaintiffs' counsel did not object and did not move to

s trike the panel but stated, " [ t ]hat's fine. No, that's fine. That's all." 3
On plaintiffs' counsel ' s next turn to make a peremptor y challenge , the judge did not skip over him bu t loo ked to him. Counsel did not attempt to make a peremptory challenge, did not ask for any additional peremptory challenge s ,

3 During oral argument on plaintiffs' post

- trial motion for a new trial, plaintiffs' counsel stated t h at he moved for a mistrial on this issue but t he tr anscript does not support that contention.14 A

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and did not ask to excuse any juror for cause

. I nstead, he indicated that the ju r y was satisfactory. With no objection from co unsel , the judge swore in the jury. To protect a litigant's fundamental right to an impartial jury, a trial judge must ensure that the jury

- selection process is fair. Pellice r ex rel

. Pellicer v. St. Barnab a s Hosp. , 200 N.J. 22, 40 (2009). A trial judg e mus t also protect a jury from "the taint of outside influences and extraneous matters." State v. R.D. , 169 N.J. 551, 557 (2001). A trial judge has the discretion to decide w hether to question potential jur o rs in open court or at sidebar. Pellicer , 200 N.J. at 41. "[O]ur jury selection mechanisms are designed to create the opportunity in which any relevant, preconceived notions will be revealed and explored, and all
pre - exis ting biases will be exposed." I d

. at 42. Faced with a con cern about improper i nflue nce on the jury, " the trial judge must make a probing inquiry into the possible prejudice cause d by any jury irregularity, relying on his or her own objective evaluation of the potential for prejudice rat h er than on the jurors' subjective evaluation o f the ir own impartiality." State v. Scherzer , 301 N.J. Super. 363, 487

- 88 (App. Div. 1997)

. "'[T]endency' to influence the verdict

– not probability or likelihood

– is the standard for determining whether a n ew trial should be granted. " Barber v. Shop

- R ite o f Englewood & Assocs. , 406 N.J. Super. 32, 5 6 (App. Div. 2009).15 A

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Rule 1:8

- 3 (c) entitles e ach party to six peremptory challenges and allows the trial court in its discretion to award a party additional cha l lenges if the case involves "multiple parties havin g a substantial identity of interest in one or m ore issues ." That discretion should be e xercised " in order to avoid unfairness." I bi d.
In Velazquez the plaintiffs had used all of their challenges and w e re dissatisfied with the jury. When the plain tiffs asked for additional challenges, the trial court denied the request. Concerned that a plaintiff facing m ultiple defendants could be placed at a di sadvan tage in rejecting prospecti ve jurors peremptorily

– a disadvantage that could compromise the righ t to an impartial jury

– our Supreme
Court held that a trial court must "analyze the positions of the multiple parties for identi ty purpose s to determine whether the adversary will be pr ejudiced unless more pe r emptory challenges are awarded." Velazquez , 1 63 N. J. at 691

- 92.
T he better course may have been for the trial judge to address plaintiffs' request for additional peremptory challenges before jury selection began

. F inalizing the number of peremptory c h allenges earl y in the process has the advantag e of informing all parties as to the limits they will face in making peremptory challenges during jury selection. We see no advantage in waiting. However, we find no prejudice and no reversible error in the t rial judge's16 A

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decision to wa it to set the numbe r of peremptory challenges. In Russell v. Rutgers C ommunity Health Plan , Inc. , 280 N.J. Super. 445, 456 (App. Div. 1995) , before jury selection, the plaintif f s move d f or additional peremp tory challenges. The trial judge denied th e plaintiffs' application with out prejudice and t old the m that they could renew it later "should prejudice arise." I bid. We affirmed that decision, finding that the plaintiffs had not show n any prejudice. Here, the trial judge di d not deny plaintiffs ' application for addition al
pe remptory challenges and made clear his conclusion that they were entitled to additional challenges. Like the trial j udge in Russell , he cho se to hold off until later in the jury

- selection process to set t he number of additional challenges

– a procedu re to which plaintiffs did not object. Like the plaintiffs in Russell , plaintiffs have failed to show that th ey were prejudiced by that procedure. T he trial judge did not deny any request to strike a juror

. P laintiffs have not identified any juror they did n ot want on the jury or a ny sidebar application to strike a juror for cause that they would not have made had the judge set earlier the number of additional peremptory challenges

. U ltimately , unlike the
p l aintiffs in Vela zquez , plaintiffs advised the judge that the make

- up of the jury was satisfactory. We see no prejudice.17 A

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With respect to juror number four 's comment s , the trial judge conducted the required "probing inquiry," questioning each juror a s t o wha t was heard and exploring whet her the juro rs co uld r emain fair and impartial. See Scherzer , 301 N.J. Super. at 487

- 88

. From t hat process , the trial judge was able to determine that the remaining jurors were not influenced by juror number four's comm e nts and harbored no prejudice as t o any party or co unsel

– such that plaintiffs' counsel did not ask that any other juror be excused. We see no error. The trial judge acted within his discretion in questioning jurors in open
court. Pellicer , 200 N.J. a t 41

. In her comment about Ocean Medical Cente r, th e potential juror did not identify any doctors or nurses involved in her husband's care or provide any details regarding her husband ' s treatment. As the trial judge noted in denying plaintiffs' post

- tria l motion , potential jurors k now that hospitals are i n the business of trying to save people's lives. Before their deliberations, the judge instructed the jurors that " [y] our decision in the case must be based solely upon the evidence presented and my inst r uctions o n the law." The e xcused potential ju ror's single, isolated comment did not have the effect of tainting the jury and is not grounds for a new trial.18 A

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- trial new - trial motion , which was b ase d in part on the jury's failure to find tha t nur ses Conroy and Lim and Dr. Parker deviated from the applicable standards of care

. 4 They argu e the judge's de nial was against the weight of the evidence. We disagree.

" The standard of review on appeal f rom decisions on motions for a new trial is th e sam e a s that governing the trial judge

– whether there was a miscarriage of justice under the law." Risko v. Thompson Muller Auto. Grp.
Inc. , 206 N.J. 506, 522 (2011) ; see also Hayes v. Delamo t te , 231 N.J. 3 73, 386 (2018) ; R

. 2:10

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. "[A] 'miscarriage of ju stice' can arise when there is a 'manifest lack of inherently credible evidence to support the finding,' when there has been an 'obvious overlooking or under

- valuation of crucial evidence, ' or when the ca s e culminates in ' a clearly unjust result.'" H ayes , 231 N.J. at 386 (quoting Risko , 206 N.J. at 521

- 22).

4 Plaintiffs brief this argument only as to these three defendants but assert that they have not abandoned the argument as to the other defendants. That, h ow e ver, was their last chance to raise it as to o ther defendants because "[a]n issue not briefed is deemed waived." W.H. Indus., Inc. v. Fundicao Balancins, Ltd a , 397 N.J. Super. 455, 459 (App. Div. 2008). Accordingly, we consider this argument of their ap p eal only as to defendants Conroy, Lim, and Par ker.19 A

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A "jury verdict is entitled to considerable deference." Risko , 206 N.J. at 521

. "On a motion for a new trial, all evidence supporting the verdict mu s t be accepted as true, and all reasonable infe rence s must be drawn in favor of upholding the verdict." Boryszewski v. Burke , 380 N.J. Super. 361, 391 (App. Div. 2005); see also Dutton v. Rando , 458 N.J. Super. 213, 224 (App. Div. 2019)

. In an appeal of a decision on a motion for a new trial, we must give " due regard to the opportunity of the jury to pass upon the credibility of the witnesses ," R. 4:49

- 1(a) , and " 'due deference' to the t rial court's 'feel of the
case.'" Risko , 206 N.J. at 522 (quoting J a stram v. Kruse , 197 N.J. 216, 230 (2008)). To p revail in a medical malpractice action based on a deviation from the standard of care, a plaintiff must demonstrate that the medical professional deviat ed from an established standard of care

. Newmark

- Sh o rtino v. Buna , 427 N.J. Super. 285, 304 (App. Div. 2012)

. Plaintiffs assert the y proved a deviation as to defendant s Conroy and Lim because they established those nu rses had as a matter of law an absolute duty, based on standing order no. 48, to call a d o ctor when plaintiff 's heart rate exceeded 120 beats per minute and that they failed in that duty by not call ing a doctor when plaintiff's heart rate exceeded 120 beat s per minute. They assert they proved a deviation as a matter of law as to Dr.20 A

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Parker be c ause he discharge d plaintiff without taking an y oth er action even though her white blood count was above normal at 22,000 per microliter of blood

. The theme of plaintiffs' case was that defendants failed to take certain action s when plaintiff's heart rate and white blood cou n t exceeded a particular

nu mber. D efen dants' theme was that "[y]ou don't just treat a patient's number, you treat the patien t ." The jury ha d before it evidence that supported d efen dants' theme, and it was free to accept that evidence

. E vidence regarding a standard order or proced ure m ay inform the jury as to the existence of a duty, but questions of fact as to the scope of that duty may rema in. Tobia v. Cooper Hosp

. Univ. Med. Ctr. , 136 N.J. 335, 342 (1994). Defense witnesses testif i ed that even with standing order no. 48, nurse s con sider other factors regarding a patient's condition before contacting a doctor because a single number

– espe cially a number that could otherwise be explained

– did not raise an alarm in a clinically

stab l e patien t showing no other signs of infection or di stress. D r. Parker 5

5 Without citation to the record, plaintiffs assert in their appellate brief that Dr. Parker made an "admission o f a breach," "confirmed the nurses misled him , " and "conceded " that "he did nothing but di s charge his patient" and claimed defen se medica l exp ert Dr. Bruce Gingold testified that Dr. Parker had deviated from a standard of care by discharging plaintiff . Ou r review of the record does not reveal any such testimony by Dr. Parker or Dr. Gingold

. P l aintiffs also rely21 A

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acknowledged that he had discharged plaintiff with an elevated white blood count but disputed that he took no other action, noting that he : examined plaintiff; instructed her to cont a ct him or his partners if she experienced any chang es or had any fever, chills, nausea, vomiting, extended abdomen, or change in function of the ostomy ; and ordered visiting nurses to see plaintiff at home

. Plaintiffs accuse the judge of treating them " h ostilely" in their motion for a new trial beca use p laintiffs had failed to move for a directed ve rdict during trial . We see no hostile treat ment by the judge , who correctly point ed out that plaintiffs had not moved during trial 6 for a directed verdict on the issue of defendants' deviation s from a sta ndard of care and had not ob jected to the jury interrogatories and charge regarding defendants' alleged deviation s . To the contrary, the judge fairly noted that plaintiffs' decisions not to move for a directe d verdict and not to object to the jury interro gator ies or charge may have been part of plaint iffs' trial strategy. More important, in denying plaintiffs' motion, the judge reviewed the evidence presented and conclud ed that the jury

on a case, Cowley v. Virtua Heal th Sys. , 456 N.J. Super. 278 (App. Div. 2018 ), which was reversed after plaintiffs submitted their appellate briefs , 242 N.J. 1 (2020).

6 Submitt ing a pre - trial brief in anticipation of a motion for a d irected verdict is not the same thing as actua lly m aking the motion during trial.22 A

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had before it sufficie n t evidence to support the verdict rendered

. W e agr ee with the judge's analysis

. C. Plaintiffs fault defen se counsel for comments made during opening
statements , arguing that those comments biased the jurors against plaintiff. We

see no undue prejudice f rom counsels' comments, and any prejudice was cured by appropriate instructions given by the judge. Two lawyers commented in their opening statements on plaintiff's pre

surgery decision to hold off getting a recommended C T scan until after a visit with h er parents. 7 One of those lawyers stated , "[t ]his case is all about responsibility, Dr. Parker has taken his responsibility , but it's a two

- wa y street

. . . . P atients have a responsibility also." Plaintiffs' counsel objected to that
comment . The judge asked him what remedy he was seeking and if he was seeking a mistrial . He told the judge t hat he was not moving for a mistrial but was asking the judge to issue a curative instruction

. The judge granted that request and told counsel he would give a c ura t ive instruction clarifying that any reference to pl aintiff having a r esponsibility related only to her June 6 , 2013

7 Plaintiffs' complain that defense counsel "strategically blamed " plaintiff throughout the trial. They fail to support that assertion with citations to the record. Wit h out citations to the record, we cannot conside r tha t broad allegation.23 A

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decision not to go immediately to the emergency room or the doctors' office. Counsel did not object to the proposed instruction and did no t object after the judge gave the instruction. Pla intiffs accuse another attorney of inflaming the jury by stating that plaintiffs' counsel :

has a job to do because he has to figure out how to blame a whole lot of people for a decision that only one per s on made. Because he's already settled with th e per son that made that decision . So now in order to ensnare other people into that decision, he's going to have to work pretty hard. Plaintiffs' counsel objected to that comment and asked for a curative in s truction that the jurors were not to speculate as t o the reason for the settlement with Dr. Parker , plaintiffs had always maintained that the defendant nurses were negligent, and the jury was to disregard any comment about plaintiffs' changing their posit i on . The judge instructed the jurors to focus on th e evi dence :

Sometimes p eople will say things that they probably shouldn't have and , . . . your job is to listen to the evidence , and that's goi ng to start right now

. Any comments made by the attorneys o r questions that they shouldn't have asked or c ommen ts that they threw in that were just simply gratuitous I'm going to ask you to overlook

. F ocus on the evidence , focus on the answers that the witness [es] provide you

. . . . F ocus on the evidence , try to k eep the distractions at b ay .24 A

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Denying plainti ffs' post

- trial motion for a new trial based on this issue, the judge explained that he gave a more general instruction than the specific instruction request ed by plaintiffs' counsel because he "felt that repe a ting something that should not have been said the f irst time would only be ringing the bell twic e " and " felt that it was best . . . not to underline an issue that they've heard , but to tell them you've heard some noise. Disregard it . I want you to focus on the evidence." Plaintiffs also complain on ap peal about comments to which they did not object at trial. See State v. Timmend equas , 161 N.J. 515, 576 (1999) ( finding that "[f]ailure to make a timely objection indicates that defense counsel did not b e lieve the remarks were prejudicial at the time they were made " and "deprives the court of the opportunity to take curative action") ; see also Jackowitz v. Lang , 408 N.J. Super. 495, 505 (App. Div. 2009) ( applying plain

- error standard when party failed to o bject during trial)

. One defense counsel said in h is opening statement that the jurors may someday be litigants and that if they d ecide this case without sympathy, they will have more confidence in having a jury of their
pe ers . They did not object at tr i al but later, in their p ost

- trial and now , pla intif fs characterize that comment as an improper invocation of the "golden rule." Another counsel discussed a nurse's ability to use her judgment in monitoring25 A

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and communicating with doctors about a patient's condition

. Again, plaintiff s did not obj ect a t tri al and did not criticize those comments as being contrary to a ruling by the court that nursing judgment did not apply and as being part of a pattern of attempt s to bias the jury until they filed their po s t

- trial motion and this appeal

. The p urpos e of an opening statement is to " inform the jury in a general way of the nature of the action and the basic factual hypothesis projected, so that they may be better prepared to understand the evidence." Farkas v. Bd. of Chosen Freeholders , 49 N.J. Sup er. 3 63, 3 67

- 68 (App. Div. 1958); see also
Amaru v. Stratton , 209 N.J. Super. 1, 15 (App. Div. 1985) . In an opening statement, say ing something a lawyer knows cannot be proven or is legally inadmissible or " derisi v e . . . about parties, their counsel, or thei r wit nesses" is improper. Szczecina v. PV Holding Corp. , 414 N.J. Super. 173, 178 (App. Div. 2010)

. A trial judge has broad discretion in affording a rem e dy for unduly prejudicial comments made during an ope n ing stat ement, including granting a motion for a mi strial, giving curative instructions, or taking other curative action. Amaru , 209 N.J. Super. at 15. We do not disturb those curative efforts absent an abuse of discretion. Ibid. "Fleeting comments, e v en if im proper, may26 A

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not warrant a new trial, p artic ularly when the verdict is fair." Jackowitz , 408 N.J. Super. at 505

. A lawyer invokes the g olden r ule when he argues to a jury that "you should do unto others as you would wish them to do unto you

. . . . " Geler v

. Akawie , 358 N.J. Super. 437, 46 4 (Ap p. Div. 2003). That argument is improper because it suggests to jurors that they should decide the case based on their per sonal interest and bias instead of the evidence. Id. at 464

- 65. By encouraging j urors to decide the case without sympathy, cou nsel was not asking jurors to place themselves in defendants' positions or to decide the case based on their personal interests and, thus, did not invoke the golden rule

. Counsel's comment about a nurse using her judgment fits with defendants' the me that a med ical professional
treat s the entire patient and not a single number and constitutes fair comment on the anticipated present ation of evidence, not an improper attempt at bias. The other comments made b y defense counsel in their openings d id not ris e to th e level of derision or knowing wrongdoing that drew our rebuke in Szczecina , 414 N.J. Super. 173

. Moreover, the curative instructions given by the judge were appropriate , fair, and sufficien t to addres s any concerns. We see no abuse of discretion.27 A

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- 17T1 D. Plaintiffs argue that the judge erred by improperly limiting the direct examination of their standard

- of

- care expert , Dr. Richard Goldstein , and their

cross - examination of defendant Dr. Lake and by denyi n g their motion to re

- open the case to recall D r. Go ldstein. We disagree.
We defer to a trial judge's evidentiar y rulings absent an abuse of discretion. State v. Nantambu , 221 N.J. 390, 402 (2015); see als o Ehrlich v. Sorokin , 451 N.J. Super. 119, 128 (A p p. Div. 2017). That standard applies to decis ion s about the testimony of expert witnesses, see Townsend v. Pierre, 221
N.J. 3 6 , 52 ( 2015) , and treating physicians, see Delvecchio v. Twp. of Bridgewater , 224 N.J. 559, 581 (2016)

. We reverse a trial judge ' s decision regarding cross

- examination only wh en "c lear error and prejudice " have been shown. State v. Gaik wad , 349 N.J. Super. 62, 86

- 87 (App. Div. 2002)

. We review a motion to reopen a case under an abuse

- of

- discretion standard

. Tomney v. Eb eli n g , 10 5 N.J. Super. 66, 70 (App. Div. 1969)

. A judge may preclude expert testimony "on a subject not covered in the written reports furnished by an adversary." Congiusti v. Ingersoll

- Rand Co. , 306 N.J. Super. 126, 131 (App. Div. 1997). A party may avoid precl u sion of expert testimony not contained in a wr itten report i f the party can demonstrate28 A

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"(1) the absence of a design to mislead, (2) absence of the element of surprise if the evidence is admitted, and (3) absence of prejudice which would result from the a d mission of the evidence." Westphal v. Guarino , 163 N.J. Sup er. 1 3 9, 145

- 46 (App. Div.), aff'd o.b. , 78 N.J. 308 (1978); see also Conrad v. Robbi , 34 1 N.J. Super. 424, 441 (App. Div. 2001)

. Plaintiffs assert that Dr. Goldstein was not permitted to testi f y that a standard of care required Dr. Lin to inves tigate th e cause of plaintiff's increased white blood count "by doing something, which included, but was not limited to, ordering a CT scan." D efendants argue that plaintiffs attempt ed improperly to add a t trial new opinions about Dr. Lin that went b eyond the opin ions contained
in Dr. Goldstein's reports an d his discovery

- deposition testimony

. In his first report Dr. Goldstein opined that "Dr. Lin deviated from the standard of care by not investigating t he source of [plaintiff' s elevated white blood coun t ] on May 30, 2013" and that " [t] his investigation would have been a CT scan of the abdom en." He did not impose any other standard of care or investigative effort with respect to Dr. Lin. In his first s u pplemental report , Dr. Go ldstein stated that t he "r ise in [white blood count] should have been a subject of great concern, along with the non

- resolving tachypnea and tachycardia." But he did not opine that the standard of care required him to investigate the29 A

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tachypnea or tachycar dia and did not name any o ther investigative action Dr

. Lin should have taken. During his discovery deposition , Dr. Goldstein stated for the first time that the "first test that should have been done [by Dr. Lin] was a urinalysis and a chest x

- ray." He e xplained that "[i]t's much more common for a postoperative patient to have a urinary infection or to have pneumonia tha n it is to have an anastomotic leak. These are routine things." He stated that he was not criticizing Dr. Lin for failing to order a urinalysis or x

- ray and ackn owledged that an x - ray or urinalysis would have shown nothing because plaintiff did not have pneumonia or a urinary tract infection. He expressly confirmed that his criticism of Dr. Lin was that he had f a iled to order a CT scan of the abdomen given t he in crease in plaintiff 's white blood count

. At trial, counsel for Dr. Lin objected when Dr. Goldstein opined that Dr. Lin should have been concerned not only by plaintiff's elevated white blood count but als o by her elevated heart rate. At sidebar , t he judge conducted with counsel an extensive revie w of Dr. Goldstein's report s and deposition testimony and correctly concluded that Dr. Goldstein had never opined previously that a standard of care concerning pl a inti ff's tachycardia and tachypnea applied to Dr.
L in and that the applicable standard of care was based on the elevated white blood count. He held that " [h] e's already testified that it's an area of concern. I30 A

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think we ought to leave it where it is. I ' m no t going to allow him . . . to indicate tha t it' s a deviation from the standard of care not to notice the tachycardia and the tachypnea." Plaintiff's counsel responded by stating that he was "[n]ot going there." The judge and counsel then discusse d whether Dr. Goldstein could testify that Dr. Lin h ad deviated from the standard of care by failing to order a urinalysis or x

- ray. The judge expressed concern that Dr. Goldstein would "suggest to the jury that Dr. L i n could have done a million things, a n d then not criticiz i ng that inaction as being a dev iation of standard of care." The judge asked Dr. Goldstein , "[w]hat do you do in order to find a leaking anastomosis? , " and he responded, "[t]he most common way in which it's done is with a [ CT ] scan." T h e judge correctly concluded that the failure to or der the CT scan was the deviation from the standard of care identified by Dr. Goldstein before trial. The judge properly limited Dr. Goldstein's testimony and denied plaintiffs' motion to re

- open their c a s e . The only standard

- of

- care opinion Dr. Gol dstei n actually rendered before trial about Dr. Lin was that he should have investigated plaintiff's elevated white blood count. The only deviation he actually identified was the failure to order the CT scan. In his deposition, he expressly stated that
h e was not criticizing Dr. Lin for not ordering an x - ray or urinalysis, tests that31 A

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would have revealed nothing about the bowel leak

. Defendants reasonably would have been surprised by and prejudiced by the add i tion of a new st andard of care and new deviati ons a t trial. Plaintiffs argue on appeal that they "attempted to cross

- examine Dr. Lake as to his opinions, but the trial court would not permit the inquiry." Dr. Lake's counsel objected when plaintiffs' coun s el asked Dr. Lake if he could "log onto a
comp uter in your office and actually see [plaintiff's] char t from Ocean Medical
Center?" In a sidebar discussion with counsel, the judge noted that plaintiffs had not alleged that Dr. Lake had deviated from a sta n dard of care by not reviewing plaintiff's hosp ital chart when he spoke with her by telephone after her discharge. Plaintiffs' counsel stated that he wanted to ask Dr. Lake, "[d]o esn't the standard of care require you to see what her condition was at disc h arge?" The judge declined to allow that quest ion b ecause "[t]here's no standard of care that requires him to do that " but allowed counsel to "ask him what he did, and you can ask him did he have the ability to do that, but that's the end of it." Dr. Lak e testified that he had access to the hospital chart from his office and that he did not access it. "The testimony of a treating physician is subject to an important limitation. Unless the treating physician is retained and designated as an expert32 A

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witne s s, his or her testimony is limited to issues r eleva nt to the diagnosis and treatment of the individual patient." Delvecchio , 224 N.J. at 579 ; s ee also Stigliano v. Connaught Lab. , Inc. , 140 N.J. 305, 314 (1995). The judge correctly rejected plaintiffs' attempt to e licit testimony from Dr. Lake esta blish ing a new standard of care or deviation that required him to review plaintiff's hospital chart when plaintiff called his office about her pain medication. Plaintiffs had not alleged or established that s t andard of care or deviation before trial throu gh th e ir experts or even through prior testimony of Dr. Lake. Asking Dr. Lake whether the standard of care require d him to " see what her condition was at discharge " before speaking to her was not an attempt
t o elicit proof of a n alleged deviation, see , e. g. , L anzet v. Greenberg , 126 N.J

. 168, 191 (1991) , but was an attempt to impose a new standard of care or deviation on Dr. Lake, who reasonably would have been surprised and prejudiced by the addition of that n ew standard of care or deviation at trial

. Pla intif fs argue for the first time in their appellate reply brief that the judge should have permitted them to establish through defendant Dr. Lake's testimony standard

- of

- care opinions, which plaintiffs' expert s did not ma k e , that would have "impeached" Dr. Park er and Dr. Lin. Plaintiffs do not identify what those impeaching standard

- of

- care opinions would have been. They do not cite33 A

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to any provision in the record where the y sought to cross - examin e Dr. Lake

re g arding the stan dards of care applicable to Drs . Par ker or Lin or where the judge prevented them from doing so

. They did not make that argument at trial or in their initial appellate brief. See N.J. Div. of Youth and Fam

. Servs

. v. M.C.
III , 201 N.J. 328 , 339 (2010) ( fi nding that " issues not raised b elow will ordinarily not be considered on appeal unless they are jurisdictional in nature or substantially implicate the public interest") ; Borough of Berlin v. Remington & Vernick Eng'rs , 337 N.J. Super. 590, 596 (App. Div. 2001) ( declining to decide issu e rai sed improperly for the first time in appellate reply brief)

. We decline to consider this argument.
E. Plaintiffs argue that the judge erred in "merging the vicarious liability charge with the settling d e fendant charge " and in its charge and juror
in terro gatories regarding Dr. Lake. We disagree. In an appeal challenging a jury charge, we "must examine the charge as a whole, rather than focus on individual errors in isolation." Vis ci k v. Fowler Equip. C o . , 173 N.J. 1, 18 (2002). We consider "whethe r an erroneous charge may have affected the trial's result." Washington v. Perez , 219 N.J. 338, 351 (2014). We generally do not reverse based on an erroneous jury charge if it was34 A

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"incapable of producing an u njust result or prejudicing substantial rights ." F i sch

v. Bellshot , 135 N.J. 374, 392 (1994); see also Mandal v. Port Auth. of N.Y. &
N.J. , 430 N.J. Super. 287, 296 (App. Div. 2013). "A trial court's interrogatories to a jury are not grounds for a reve r s al unless they were misleading, confusing,

or ambig uous." Sons of Thunder, Inc.v. Borden, Inc. , 148 N.J. 396, 418 (1997 ); see also Flood v. Aluri

- Vallabhaneni , 431 N.J. Super. 365, 379 (App. Div. 2013). "Where a charge i s not objected to at trial , it wi l l only be reversed if there is 'plain error.'" Bra dford v. Kupper Assocs. , 28 3 N.J. Super. 556, 573 (App Div. 1995) (citing R. 2:10

- 2 ). "The absence of an objection suggests that trial counsel perceived no error or prejudice, and, in any event, p revente d the trial judge from remedying any possible c onfus ion in a timely fashion." Id. at 573

- 74. The judge charged the jury in accordance with Model Jury Charge 1.17 ( "Instructions to Jury in Cases in which One or More Defendants Have Settled With the Plaint i ff " ) and added : "Atlantic Surgical Group is i n thi s case with respect to Dr. Parker, on a theory of vicarious liability. Even though Dr. Parker and the plaintiff s have resolved their differences, the plaintiffs are still pursuing the Atlantic Sur gical G r oup for Dr. Parker's conduct. "35 A

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Plaintiffs as sert on appeal that because of their settlement with Dr. Parker, the question before the jury should have been whether defendants had proven the negligence of Dr. Parker

. They make that argument for the first time on appeal even though in their proposed a nd re vised proposed charges, they stated that plaintiff had the burden of establishing that any defendant had acted negligently. P laintiff s' settlement with Dr. Parker did not remove from their case his liabi l ity because they continued their assertion tha t Atl antic Surgical Group was liable for his negligence. Thus, they retained the burden of proof as to Dr. Parker's negligence , as the judge correctly charged the jury. P laintiffs' proposed charge on agency w ould not have led to a different result, given that the jury found no devi ation by the defendant doctors and nurses. We also find no merit in plaintiffs' challenge to the jury charge and interrogatories regarding Dr. Lake. The verdict sheet contain e d three questions regarding Dr. Lake's alleged negl igence , asking whether he had " deviated from accepted standard of medical practice," "was notified of the plaintiff's increase in abdominal pain," and "was notified of the plaintiff's increase in leg swel l ing." Plaintiffs' counsel agr eed to the jury inter rogatories regarding Dr. Lake , advising the judge that he was satisfied with the m "[i]f we brea k them out. The swelling one, and pain one. I don't want the implicati on that it has to be both in that36 A

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que s tion. But other than that, I'm satisfied with that interrogatory being asked." The questions , which were broken out as plaintiffs' counsel had requested , did not specif

y that the notice of the abdominal pain or swelling had to come from plaintiff ; the j u ry could have found that Dr. Lake was otherwis e on notice of those conditions. The jury interrogatories and the charge that followed them accurately reflected th e evidence presented at trial and were appropriately tailored to the facts of the case. See E s tate of Kotsovska , ex rel. Kotsovska v. Liebma n , 22 1 N.J. 568, 591

- 92 (2015).
III

. Because the jury found no deviation from a standard of care, we need not consider plain tiffs' arguments relating to proximate cause, damages, or other questions not reache d by the jur y. Thus, we do not consider plaint iff's arguments regarding Dr. Ging old 's testimony or jury charges on Scafidi v. Seiler , 119 N.J. 93 (1990), vicarious liabili ty, or mitigation. To the exten t we do not address
any of plaintiffs' remaining arg u ments, it is because w e find insufficient meri t in them to warrant discussion in a written opinion. R. 2:11

- 3(e)(1)(E). Our disposition of plaintiff's appeal renders defendant Lake's cross

- appeal moot. Accordingly, we do not address it. Affirmed.