SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0580-19

BARBARA CULLEN and JOHN

CULLEN,

Plaintiffs-Appellants,

v.

CONCENTRA, INC., 

CONCENTRA HEALTH 

SERVICES, INC., CONCENTRA 

WEST NEW YORK, 

CONCENTRA MEDICAL

CENTERS, CONCENTRA 

URGENT CARE, and 

CONCENTRA URGENT CARE 

MEDICAL CENTERS,

Defendants-Respondents,

and

COUNTY OF HUDSON, 

HUDSON COUNTY 

DEPARTMENT OF FAMILY 

SERVICES, INSTITUTE OF 

SCIENCE AND TECHNOLOGY,

NEW JERSEY DEPARTMENT 

OF HUMAN SERVICESDIVISION OF FAMILY 

NOT FOR PUBLICATION WITHOUT THE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.
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A-0580-19

DEVELOPMENT, LOGISTICARE 

SOLUTIONS, LLC,

LOGISTICARE, LOGISTICARE

MEDICAL TRANSPORTATION,

ACCESS CARE 

TRANSPORTATION CORP., 

MADELINE DIAZ, RICHARD

A. BOIARDO, M.D., CROSS

COUNTY ORTHOPAEDICS, P.C.,

PROGRESSIVE INSURANCE

COMPANY,

Defendants.

_____________________________

Argued January 4, 2021 – Decided February 10, 2021

Before Judges Currier and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Docket No. L-2911-17.

William L. Gold argued the cause for appellants 

(Bendit Weinstock, PA, attorneys; William L. Gold, on 

the briefs).

Janet L. Poletto argued the cause for respondents

(Hardin Kundla McKeon & Poletto, PA, attorneys; 

Janet L. Poletto, of counsel and on the brief; Robert E. 

Blanton, Jr., on the brief).

PER CURIAM

Plaintiffs Barbara and John Cullen, a married couple, appeal from a nocause verdict following a jury trial on their personal injury complaint, 
3

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challenging only the jury selection process.

1

 The jury's verdict was 

memorialized in a September 26, 2019 order of final judgment in favor of 

defendants Concentra, Inc., Concentra Health Services, Inc. d/b/a Concentra

Medical Centers and d/b/a Concentra Urgent Care2(collectively, Concentra), 

effectively dismissing the Cullen complaint with prejudice. We affirm.

We glean these facts from the record. In July 2017, plaintiffs filed a 

complaint and jury demand against defendants and others3alleging claims 

sounding in negligence. Specifically, the complaint alleged that on July 27, 

2015, while volunteering at defendants' medical facility, plaintiff Barbara 

Cullen sustained injuries when she tripped and fell over a wire. Five months 

later, on December 22, 2015, Barbara4 was involved in a motor vehicle accident 

while being transported from medical treatment for the injuries sustained during 

1

 On October 25, 2019, the trial court entered an order granting plaintiffs' 

motion for "abbreviated transcripts limited to the court's selection of the jury." 

See R. 2:5-3(c). 

2

 Improperly pled as Concentra Health Services, Inc.

3

 Several other defendants were named in the complaint but were dismissed 

prior to trial.

4

 We refer to the Cullens by their first names to avoid any confusion caused by 

their common surname and intend no disrespect.
4

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the fall. The complaint sought damages for injuries sustained in the automobile 

accident as well as the fall on defendants' premises.5

Prior to the commencement of jury selection, in plaintiffs' pretrial 

exchange submitted to the court and counsel in accordance with Rule 4:25-7, 

plaintiffs

request[ed] the standard voir dire questions in the 

Supreme Court Guidelines as well as the following 

open-ended questions:

1. Do you believe in evolution? If not, 

why?

2. Do you believe that humans are at least 

partially responsible for global climate 

change? If not, why?

On September 10, 2019, jury selection commenced. Following an off-therecord conference, with the agreement of counsel for both parties, the court

provided the prospective jurors with a printed copy of the final voir dire 

questionnaire for use during jury selection.

6

 The questionnaire contained 

5

John asserted a per quod claim alleging deprivation of "the services, 

consortium, and companionship" of his wife.

6

 With plaintiffs' consent, we granted defendants' motion to supplement the 

record with plaintiffs' pretrial exchange as well as the final voir dire 

questionnaire utilized during jury selection. 
5

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twenty-one standard questions that mirrored the "Model Jury Selection 

Questions" promulgated in Administrative Directive #4-07,7 nine special voir 

dire questions, ten biographical questions, and the omnibus questions. 

In addition to the two open ended questions requested in plaintiffs' pretrial 

exchange, the special voir dire questions, which were tailored to the case, asked:

(1) whether the juror, "by reason of religious or other convictions, [did] not 

believe in medicine, doctors, certain medical treatments or hospitals"; (2) 

whether the juror, any family member, or close friend had "ever been diagnosed 

with an orthopedic injury;" (3) whether the juror, any family member, or close 

friend was "ever . . . involved in a motor vehicle accident in which injuries were 

sustained"; (4) whether the juror, any family member, or close friend "ever 

utilized the services of Logisticare Medical Transportation or Access Care 

Transportation Corp."; (5) whether the juror, any family member, or close friend 

"ever received treatment from or at a Concentra facility"; (6) whether the juror, 

any family member, or close friend "ever had an experience with a hospital, 

urgent care facility, minute clinic or doctor's office, good or bad, that would 

impact [the juror's] ability to be fair and impartial in th[e] case"; and (7) whether 

7

 See Administrative Directive #4-07, "Jury Selection — Model Voir Dire 

Questions Promulgated by Directive #21-06 — Revised Procedures and 

Questions" (May 16, 2007).
6

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the juror, any family member, or close friend was "ever . . . involved as either a 

plaintiff or defendant in a slip and fall accident in which an injury resulted." 

After the jurors reviewed and completed the questionnaire, they were 

questioned individually by the judge in open court in counsels' presence. During 

the questioning, the judge referred to the questions by numbers, clarified 

questions if jurors were uncertain or confused, and asked follow-up questions if 

called for by the jurors' response. At no point during the jury selection process 

did plaintiffs' counsel object to the procedure utilized or the questions posed by 

the judge. By the conclusion of jury selection, plaintiffs had exhausted all six 

of their peremptory challenges. See R. 1:8-3(c). After a jury was empaneled, 

trial commenced. The jury returned a verdict of 6-1 in favor of defendants, and 

this appeal followed.

On appeal, plaintiffs argue that the court erred by failing to ask "any openended questions," as required by Administrative Directive #04-07, and by 

"refusing to ask follow-up questions." According to plaintiffs, "by not allowing 

follow-up questions and by not allowing counsel any insight into the jurors that 

the mandated open-ended questions would have provided," plaintiffs were 

deprived "of the right to select a fair jury in the way the Supreme Court has 

mandated." 
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"[L]itigants are entitled to an unbiased jury and to a fair jury selection 

process." Pellicer ex rel Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 40 (2009). 

Trial judges have the primary responsibility of "ensur[ing] that the selection of 

jurors is conducted in a manner that will effectuate these rights." Ibid. "In 

implementing the process of screening and selection, the trial judge is vested 

with discretion . . . ." Id. at 41. However, that discretion is guided by "jury 

selection methods . . . designed to ensure fairness." Ibid. 

To that end, Directive #4-078imposes requirements on trial courts to make 

the jury selection process "more expeditious and streamlined" while addressing

specific issues related "to juror questioning at voir dire." Administrative 

Directive #4-07, at 1-2. Like its predecessor, Directive #4-07, which "is 

unquestionably binding on all trial courts," State v. Morales, 390 N.J. Super. 

470, 472 (App. Div. 2007), is "intended to provide for a full and complete voir 

dire of prospective jurors so that reasons for any appropriate challenges for 

cause can be discovered and so that counsel is provided with information that 

8

 Directive #4-07 supplements and modifies Directive #21-06. See

Administrative Directive #21-06, "Approved Jury Selection Standards " (Dec. 

11, 2006). Directive #21-06 required trial judges to ask each individual juror a 

set of standard questions, as well as questions tailored to the individual case. 

Directive 4-07 "modifies voir dire procedures set forth in Directive #21-06," and 

"supersedes the relevant portions of that Directive."
8

A-0580-19

may be relevant to their lawful exercise of peremptory challenges." 

Administrative Directive #4-07, at 1.

Specifically, Directive #4-07 states:

At the beginning of the voir dire process, each 

prospective juror in the panel shall be furnished with a 

printed copy of the voir dire questions, which shall 

consist of all the standard questions for the case type, 

as supplemented and determined by the judge at the 

Rule 1:8-3 conference. The form of these questions 

calls for a yes or no answer . . . .

. . . .

In addition to the printed questions, the judge shall also 

inform the jurors in the box and the array that jurors 

will also be individually asked several questions that 

they will be required to answer in narrative form. One 

such question will be the biographical question 

contained in the standard questionnaire. In addition to 

the biographical question, several other open-ended 

questions will be posed to prospective jurors . . . .

. . . .

The judge may read all of the questions one time before 

addressing each juror in the box individually. The 

judge shall . . . inquire whether the juror answered yes 

or uncertain to any of them. If so, appropriate follow 

up questions shall be asked. The judge will then ask 

that juror each of the open-ended questions, to which a 

verbal response shall be given and for which 

appropriate follow up questions will be asked. Each 

juror must then be verbally asked the two omnibus 

qualifying questions that follow the biographical 

question in the lists of standard questions . . . . 
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Questioning shall be in open court or at sidebar, in the 

discretion of the court, with input from counsel.

. . . . 

When questioning the jurors about the written form, the 

judge must refer to questions by number or description, 

sufficient to establish for the record the question to 

which the juror is responding . . . . 

Some open-ended questions must be posed verbally to 

each juror to elicit a verbal response. The purpose of 

this requirement is to ensure that jurors verbalize their 

answers, so the court, attorneys[,] and litigants can 

better assess the jurors' attitudes and ascertain any 

possible bias or prejudice, not evident from a yes or no 

response, that might interfere with the ability of that 

juror to be fair and impartial. Open-ended questions 

also will provide an opportunity to assess a juror's 

reasoning ability and capacity to remember 

information, demeanor, forthrightness or hesitancy, 

body language, facial expressions, etc. It is recognized 

that specific questions to be posed verbally might 

appropriately differ from one case to another, 

depending upon the type of case, the anticipated 

evidence, the particular circumstances, etc. Therefore, 

rather than designating specific questions to be posed 

verbally to each juror, the determination is left to the 

court, with input from counsel, in the case.

. . . .

The judge must ask at least three such questions, in 

addition to the biographical question and the two 

omnibus qualifying questions. This is a minimum 

number and judges are encouraged to ask more where 

such action would be appropriate . . . .
10 A-0580-19

. . . .

While use of the standard voir dire questions is 

mandatory, judges in their discretion may alter the 

sequence of the questions as they determine is 

appropriate – including whether to ask key challenge 

for cause questions early on, to incorporate questions 

suggested by counsel, or to integrate case type specific 

questions . . . . The voir dire questions to be asked, 

including the sequence in which to ask them, 

modifications of wording on a case-appropriate basis, 

the inclusion of supplemental questions requested by 

counsel, and the proposed open-ended questions, 

should be part of the Rule 1:8-3 conference. 

[Administrative Directive #4-07, at 3-5 (paragraph 

numbers omitted).]

In Gonzalez v. Silver, 407 N.J. Super. 576, 597 (App. Div. 2009), we 

noted the importance of Directive #4-07's requirements. However, while it was 

error in Gonzalez for the judge not to have asked the three open-ended questions 

required by the Directive, "we also recognize[d] that a certain residual discretion 

resides in the trial judge to accommodate the individual circumstances of each 

case and the consensus views of counsel, even when doing so renders the voir 

dire procedure less than fully conforming to the Directive['s] mandates." Id. at 

597. In fact, we specifically did not determine whether the failure to follow "the 

strict requirements" of the Directive "constituted reversible error." Id. at 598.
11 A-0580-19

To support their position that reversal is mandated, plaintiffs rely on

unreported decisions in which our colleagues concluded a failure to follow the 

Directive's requirements required reversal. Although those decisions are 

counterbalanced by unreported decisions reaching a contrary conclusion, none 

of those decisions are either precedential or binding upon us. See R. 1:36-3. 

Instead, where, as here, plaintiffs raise the issue for the first time on appeal, we 

review for plain error. See R. 2:10-2. Under that standard, an error does not 

warrant a new trial "unless it is of such a nature as to have been clearly capable 

of producing an unjust result." Ibid. Because a litigant "is entitled to a fair trial 

but not a perfect one," an error must have caused harm, or a likelihood of harm, 

in order to warrant a reversal. State v. R.B., 183 N.J. 308, 334 (2005) (quoting 

Lutwak v. United States, 344 U.S. 604, 619 (1953)). 

Applying that standard, we conclude the judge's failure to follow the 

Directive by asking three open-ended questions was not "of such a nature as to 

have been clearly capable of producing an unjust result" on the limited record 

provided on appeal. R. 2:10-2. To support our conclusion, we rely on the 

absence of any objection to the voir dire procedure by plaintiffs' counsel either 
12 A-0580-19

contemporaneously or after the verdict.9 We are also persuaded by the fact that 

the judge asked the two open-ended questions plaintiffs requested as well as 

seven special voir dire questions tailored to the facts in the case. Indeed, as we 

noted in Gonzalez, "plaintiff[s were] somewhat complicit in the procedure 

ultimately employed." 407 N.J. Super. at 596. We may infer that the court's 

error did not cause any harm from counsel's "seeming[] satisf[action] with the 

court's voir dire questions, which included his requested inquiry . . . ." Id. at 

597. We are therefore satisfied that the judge's failure to follow the Directive's 

requirements in the jury selection procedure did not lead to an unjust result or 

"a 'miscarriage of justice'" requiring reversal. Id. at 596 (quoting R. 2:10-1).

We also reject as unfounded plaintiffs' contentions that the judge's refusal 

to ask follow-up questions deprived them "of the right to select a fair jury in the 

way the Supreme Court has mandated." To support their contentions, plaintiffs 

point to three specific instances. In the first instance, the following exchange 

occurred between the court and counsel:

[PLAINTIFFS' COUNSEL]: Judge, do we approach?

THE COURT: I don't see why.

9

 We do not mean in any way to detract from the importance of following proper 

voir dire protocol, as provided in Administrative Directive #4-07. See Morales, 

390 N.J. Super. at 472-73.
13 A-0580-19

[PLAINTIFFS' COUNSEL]: I have a challenge for 

cause.

THE COURT: For cause?

[PLAINTIFFS' COUNSEL]: For cause.

THE COURT: All right [sic].

(Sidebar begins)

[PLAINTIFFS' COUNSEL]: Juror Number [Five's] 

answer to the torts claim question seems to suggest he 

doesn't believe people . . . should have the right to sue 

at all.

THE COURT: Okay. I disagree. But you want me to 

excuse him, use your challenge. Thank you.

(Sidebar ends)

[PLAINTIFFS' COUNSEL]: Judge, please excuse 

Juror Number [Five] with our - -

THE COURT: You're excused, sir.

[PLAINTIFFS' COUNSEL]: - - thanks.

Counsel neither requested a follow-up question nor objected to the judge's 

refusal to excuse the juror for cause. Moreover, the record sheds no light on 

why the juror's response to the "torts claim question" warranted a challenge for 

cause or provided grounds to excuse for cause. In Catando v. Sheraton Poste 

Inn, 249 N.J. Super. 253, 264-65 (App. Div. 1991), we described the requisite 
14 A-0580-19

"showing [that] must be made on the record of the jury selection itself" for an 

erroneous denial of a challenge for cause to be cognizable on appeal. We 

explained that "prompt" objections to the seating of the juror "while the judge 

still has the capacity to deal with it, insures that avoidable error does not 

inadvertently creep in to the proceedings" and "avoid[s] later disputes over the 

question of what objections were actually brought to the court's attention." Ibid.

Here, plaintiffs have failed to make the requisite showing on the record before 

us.

In the second instance, the following exchange occurred:

[PLAINTIFFS' COUNSEL]: Judge, can we approach?

THE COURT: Okay.

(Sidebar begins)

[PLAINTIFFS' COUNSEL]: It's Juror Number 

[Seven]. Question number [twelve] again. Can you 

explain to him that you charge how the jury is to 

calculate damages, and can he accept that?[10]

10

 Question twelve stated that "[t]he court [was] aware that there ha[d] been a 

great deal of public discuss[ion] about something called Tort Reform (laws that 

restrict the right to sue or limit the amount recovered[)]" and asked the 

prospective juror whether he or she "[had] an opinion, one way or the other on 

this subject" and, if so, to "explain . . . it." Juror number seven had responded 

that he had no problem with the right to sue but expressed concern about damage 

awards being "fair."
15 A-0580-19

THE COURT: . . . [H]e's already answered that 

question. I'll say it in my instructions. I'm not going to 

do it now.

[PLAINTIFFS' COUNSEL]: Judge, the idea of asking 

the question is not to create challenges; it's to create 

understanding of where the juror is. And I don't want 

to challenge a juror just because his answer was 

confusing.

THE COURT: But the answer is not confusing. Okay? 

If you really want me to ask the question - - can you 

follow my instructions on damages? Do you want me 

to ask that question?

[PLAINTIFFS' COUNSEL]: Yes.

(Sidebar ends)

THE COURT: Juror Number [Seven], could you 

follow my instructions on damages?

[PROSPECTIVE JUROR NUMBER SEVEN]: Would 

I follow it?

THE COURT: Yeah.

[PROSPECTIVE JUROR NUMBER SEVEN]: Yeah.

[PLAINTIFFS' COUNSEL]: Fine. Thank you, Judge. 

Judge, please excuse Juror Number [Six] with our 

thanks.

THE COURT: Okay. Number [six] . . . . You're 

excused, sir. Thank you very much.
16 A-0580-19

Plaintiffs' contention that the judge refused to ask a follow-up question is

clearly belied by the record. The judge asked the follow-up question requested 

by counsel, who then exercised a peremptory challenge to excuse a different 

prospective juror. We are satisfied that the information elicited from 

prospective juror number seven was sufficient for counsel to make an informed 

decision as to whether to exercise a peremptory challenge or seek removal for 

cause. See Wright v. Bernstein, 23 N.J. 284, 294 (1957) ("[T]he question is 

whether the right of challenge was denied by the prospective juror's failure to 

disclose the information sought pertinent and necessary to the decision of 

counsel."). 

In the third and final instance, plaintiffs take issue with the judge's voir 

dire of prospective juror number one. During questioning, the juror, a physical 

therapist, informed the judge that while he was not an employee of Concentra, 

he "work[ed] in a doctor's office and a physical therapy clinic" that treated 

patients "refer[red] from Concentra." When asked by the judge whether that 

fact would "impact [the juror's] ability to be fair," the juror responded "[n]o." 

Once the judge seated the juror, the following colloquy ensued between 

the court and plaintiffs' counsel:

[PLAINTIFFS' COUNSEL]: Could we approach, 

Judge?
17 A-0580-19

THE COURT: You may.

(Sidebar begins)

[PLAINTIFFS' COUNSEL]: With due respect, Judge, 

I think you got Juror Number [One] to change answers 

that were significant. I think he was saying he gets 

people from Concentra and knows them, and therefore, 

it's an objection for cause.

THE COURT: That's what he said?

[PLAINTIFFS' COUNSEL]: He said he gets patients 

from Concentra several times.

THE COURT: I know that.

[PLAINTIFFS' COUNSEL]: Yeah, so . . . he knows a 

party. He knows people who come from that party. 

He's got a relationship with that party.

THE COURT: Wait. How did I change his answer?

[PLAINTIFFS' COUNSEL]: He consistently said 

Concentra, and you kept changing it from Concentra to 

companies.

THE COURT: That changes the answer?

[PLAINTIFFS' COUNSEL]: But the - -

THE COURT: I said I (indiscernible) - -

(Sidebar ends)

THE COURT: Sir, you treat patients who come from 

Concentra, right?
18 A-0580-19

PROSPECTIVE JUROR [NUMBER ONE]: Yes.

THE COURT: Would that have any impact whatsoever 

on your ability to be fair in this trial?

PROSPECTIVE JUROR [NUMBER ONE]: (No 

audible response).[11]

THE COURT: Thank you.

[PLAINTIFFS' COUNSEL]: Please excuse Juror 

Number [One], Judge.

THE COURT: You're excused, sir. Thank you very 

much.

Again, plaintiffs' contention that the judge failed to ask follow-up 

questions is belied by the record. After asking appropriate follow-up questions 

and re-confirming that the juror could be fair and impartial, the judge seated the 

juror. We are satisfied that the information elicited from the juror was sufficient 

for counsel to make an informed decision as to whether to exercise a peremptory 

challenge, as occurred,12 or seek removal for cause, which counsel failed to do. 

In any event, any "failure to dismiss the juror for cause" is harmless where, as 

11

 We presume from the court's and counsel's reaction to the juror's response 

that the juror responded in the negative. 

12

 After exercising that challenge, plaintiffs had at least one remaining 

peremptory challenge.
19 A-0580-19

here, "'the party . . . use[s] an available peremptory challenge to excuse the 

juror.'" Arenas v. Gari, 309 N.J. Super. 1, 20 (App. Div. 1998) (quoting 

Catando, 249 N.J. Super. at 264). 

Additionally, we dismiss plaintiffs' assertion that the jury selection 

process "put [their] counsel in a bad light, by making it appear as though he was 

objecting and removing jurors for no reason." Prior to commencing the jury 

selection process, the judge instructed the prospective jurors:

The attorneys who represent the parties in this lawsuit 

have the right to exercise challenges excusing jurors 

without giving any reason for doing so. This is 

permitted by our court rules. If you're excused in that 

manner, please don't take it personally. No offense is 

intended. The law traditionally gives each attorney [the 

right] to have a limited number of jurors excused for no 

expressed reasons. 

We presume that juries follow the court's instructions. See Belmont Condo. 

Ass'n, Inc. v. Geibel, 432 N.J. Super. 52, 97 (App. Div. 2013) (citing State v. 

Feaster, 156 N.J. 1, 65 (1998)).

In sum, the jury selection process in its entirety was comprehensive, and 

the record provides no ground on which to conclude that the jury empaneled was 

not "the fair and unbiased, impartial decision-maker that is fundamental to our 

system of justice." Pellicer, 200 N.J. at 48. To the extent any argument raised 

by defendant has not been explicitly addressed in this opinion, it is because the 
20 A-0580-19

argument lacks sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E).

Affirmed.