NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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In this automobile negligence action, plaintiff Jacqueline Heredia appeals from a September 2, 2015 judgment and an August 7, 2015 order denying her motion for new trial.
It is an abuse of discretion for trial courts not to ask at least three open-ended questions of prospective jurors during jury selection, as mandated by the Directive; therefore, we vacate the judgment, and reverse and remand for a new trial.
In her complaint, plaintiff alleged she and defendant were involved in a car accident, during which plaintiff sustained bodily injury.
The trial judge declined to include any of plaintiff's proposed open-ended questions in the list of questions. The judge found the first question "redundant." As for the second question, the judge stated he would be asking many open-ended and non-leading questions when asking prospective jurors seated in the box about their biographical background; therefore, the judge found it inappropriate to ask the question. The judge rejected the third, fourth, and fifth questions because the questions did not "add to anything" or were irrelevant.
As the array entered the courtroom for jury selection, each prospective juror received the Civil Model Jury Selection Questions, as promulgated by the Directive, without any open-ended questions. The judge asked each juror seated in the box multiple biographical questions required by the Directive.
Trial commenced on June 18, 2015. Plaintiff called Dr. Young Lee, an anesthesiologist specializing in pain management. Dr. Lee testified plaintiff told him she had never been in a motor vehicle accident prior to June 3, 2011. Dr. Lee also testified plaintiff had disk herniation and while pain management could control the pain, the herniation was permanent. Plaintiff also called Dr. James Panaia, a chiropractor, who testified plaintiff had a permanent disk herniation. Lastly, plaintiff called radiologist Dr. Ralph Dauito, who stated MRIs taken after the accident revealed disk herniation that would never heal to function normally.
Defendant called orthopedic surgeon, Dr. Robert Ponzio. Dr. Ponzio testified plaintiff suffered a cervical strain and sprain injury, and opined plaintiff's injuries were permanent. Dr. Ponzio testified plaintiff had disc bulging, but he considered her condition to be unrelated to the accident. Because plaintiff had no prior history of pain, Dr. Ponzio conceded on cross-examination it was possible to have degeneration in the spine without symptoms of pain or discomfort, and a single traumatic event could cause previously asymptomatic conditions to become symptomatic. Dr. Ponzio testified disc herniation is a permanent injury.
At trial, plaintiff argued the judge erroneously denied her request to charge Model Civil Jury Charge 8.11F, aggravation/activation of preexisting asymptomatic conditions, based upon the testimony of Dr. Ponzio. The trial judge denied the request because neither Dr. Ponzio nor any other expert witness testified an underlying condition was aggravated as a result of the accident.
The jury returned a verdict of no cause of action on the non-economic losses but awarded plaintiff economic damages of $18,534.41, representing the full value of plaintiff's outstanding medical bills. Plaintiff filed a motion for new trial on July 9, 2015, arguing the trial judge should have asked the open-ended voir dire questions she proposed, as well as charged the jury on aggravation of preexisting injury. After hearing arguments on August 7, 2015, the trial judge denied the motion. This appeal followed.
On appeal, plaintiff argues the trial court improperly disregarded the Directive by failing to ask open-ended questions during voir dire. We agree a trial judge must ask open-ended questions pursuant to this Directive. We are therefore constrained to vacate the judgment, and reverse and remand for a new trial, to be conducted in accordance with the Directive.
The Directive provides direction from our Supreme Court about how to conduct the voir dire process.
Specifically, the Directive directs, in pertinent part, the following:
The Directive is binding upon all trial courts.
Here, the trial judge asked what he considered open-ended questions; he defined open-ended questions as "questions that call for something other than an yes or no response." However, the questions the judge referred to were either the required biographical or omnibus questions. Such questions may offer some insight into the perspective of prospective jurors, but they do not satisfy the mandate to ask open-ended questions. The Directive unequivocally states the trial judge must ask at least three open-ended questions. While the trial judge was within his discretion to reject plaintiff's proposed open-ended questions, it was an abuse of discretion not to ask any other open-ended questions as directed by the Directive.
We next turn to the question of whether the error warrants reversal of the trial judgment of no cause for action and the denial of a motion for new trial. We have previously said judges have an affirmative obligation to adhere to administrative directives governing the voir dire process, but counsel also has a duty to raise objection to the jury selection process.
Accordingly, we apply the harmless error rule to determine whether the trial court's failure to ask additional open-ended questions was of "such a nature as to have been clearly capable of producing an unjust result."
Plaintiff also argues the trial judge erred by refusing to instruct the jury pursuant to Model Civil Jury Charge 8.11F. We disagree.
Model Civil Jury Charge 8.11F states in relevant part,
For an aggravation charge to be appropriate, plaintiff must provide evidence to support aggravation of a pre-existing injury.
The failure to instruct the jury correctly constitutes reversible error,
During trial, plaintiff's counsel asked hypothetical questions during cross-examination of Dr. Ponzio to which he responded it is possible to have degeneration of the spine without symptoms, and it is possible for a single incident to cause the conditions to become symptomatic. Dr. Ponzio did not testify plaintiff had a preexisting condition exacerbated by the accident. Counsel's questions merely elicited from Dr. Ponzio that it was "possible." Additionally, plaintiff presented no evidence of having a preexisting condition. The trial judge therefore properly denied plaintiff's request to charge the jury with Model Civil Jury Charge 8.11F.
Because we reverse on other grounds, we need not address plaintiff's arguments about the cumulative effect of the trial court's errors.
Judgment vacated. Reversed and remanded for a new trial consistent with this opinion.