N.J. SC overturns $72M award because of jury selection process

John O'Brien Jul. 27, 2009, 3:00pm


TRENTON, N.J. (Legal Newsline) - The New Jersey Supreme Court has overturned a $71.8 million award in the case of an infant who suffered brain damage at St. Barnabas Hospital, and concluded the trial judge should no longer preside over the case.

In a unanimous decision released Thursday and written by Justice Helen Hoens, the Court ruled that the jury selection process overseen by Essex County Superior Court Judge Francine Schott was unfair to the medical personnel defendants. The hospital settled before the trial.

The defendants, three doctors and a nurse, said questioning prospective jurors in open court about their pre-existing biases against health care providers of facilities exposed those who were eventually chosen to prejudicial views and affected their impartiality.

"The record here... gives us no comfort and provides no ground on which to conclude that the jury was the fair and unbiased, impartial decision-maker that is fundamental to our system of justice," Hoens wrote.

"Because we can have no confidence that the selection process resulted in a jury panel that could fairly and dispassionately evaluate the difficult and emotionally-charged issues that were central to this litigation, we cannot permit its verdict to stand."

Casey Pellicer was born with spina bifida and was recovering from spinal surgery in 1998, when he was four months old.

A tube connected to his respirator became dislodged, and Pellicer's mother sued over the hospital's response. The boy suffered brain damage because of a lack of oxygen, and he is now a blind quadriplegic who will require 24-hour care the rest of his life.

Of the verdict, $50 million was categorized as compensation for pain and suffering for the family.

The New Jersey Hospital Association, the Medical Society of New Jersey and the American Tort Reform Association filed amicus briefs in the case.

The defendants argued the plaintiffs' counsel disparaged one of their experts based on his ethnic heritage, asserted the defendants would profit financially if the boy died and accused the defendants of hiding or destroying evidence.

"Standing alone, if that verdict had been awarded by a fairly impaneled, dispassionate and unbiased jury, based on adequate and appropriate testimony and evidence, the award might well be sustainable," Hoens wrote.

"In the end, however, our concerns about the improprieties that infected this trial call the verdict into question because this historic and extraordinary damage award cannot be separated from those errors.

"Further, because it unfortunately appears that the trial court's admitted outrage at the hospital was not dissipated by that party's settlement and sanction, out of an abundance of caution and to ensure fairness to all of the parties, we direct that on remand the matter be assigned to a different trial judge."

The ATRA's amicus brief challenged the $50 million award for noneconomic damages, arguing it sent a message to health care providers and other business communities that they should settle lawsuits instead of fight them.

"We're generally pleased with the New Jersey high court decision and hope lower courts will heed the expanded notion of bias," ATRA spokesman Darren McKinney.

"Atlantic County and several other Garden State counties have come under increased scrutiny since being cited in our annual 'Judicial Hellholes' report,' and we'd like to think that trial judges and other policymakers there are working to improve the quality of civil justice."

Atlantic County was the No. 4 Judicial Hellhole in the ATRA's 2008 report. One of the nurses in the case who had claims against her dismissed will be reinstated as a defendant.

From Legal Newsline: Reach John O'Brien by e-mail at john@legalnewsline.com.

More News