                        NOT FOR PUBLICATION WITHOUT THE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.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1562-15T4


REGINALD P. GAMBLE and
DION M. HOPPER, His Wife,

        Plaintiffs-Appellants,

v.

PROGRESSIVE MOTION MEDICAL
PRODUCT SOLUTIONS, ADVANTUS
MEDICAL HEADQUARTERS and DJ
ORTHOPEDICS, LLC,

        Defendants,

and

BRIAN VAN GROUW, D.O.,

     Defendant-Respondent.
______________________________________________

              Argued December 18, 2017 – Decided July 11, 2018

              Before Judges Messano, Accurso and O'Connor.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Docket No.
              L-4167-11.

              Paul M. da Costa argued the cause for
              appellants (Snyder Sarno D'Aniello Maceri &
              da Costa, LLC, attorneys; Paul M. da Costa,
              of counsel and on the brief; Sarah L. Davis,
              on the brief).
          Michael J.   McBride argued the cause for
          respondent   (Mattia & McBride, PC, attorneys;
          Phillip F.   Mattia, Haley K. Grieco and
          Zachary G.   Farnsworth, on the brief).

PER CURIAM

     Following a lengthy trial in this medical malpractice

action, a jury determined defendant Brian Van Grouw, D.O.,

deviated from accepted standards of medical care when he treated

plaintiff Reginald P. Gamble, but found such treatment did not

proximately cause the damages plaintiff claimed arose from the

alleged deviations.1   Plaintiff and his spouse, Dion M. Hopper,

who asserted a per quod claim against Dr. Van Grouw, appeal from

an October 29, 2015 order denying plaintiffs' motion for

judgment notwithstanding the verdict, a mistrial, or new trial.2

     After reviewing the evidence adduced at trial, the parties'

arguments, and the applicable legal principles, we affirm.

                                 I

     We summarize the salient evidence.    In 2009, plaintiff

consulted with defendant, an orthopedic surgeon, about pain he

had been experiencing in both knees.    On May 13, 2009, defendant

performed an arthroscopy on plaintiff's left knee to remove the

1
   By the time of trial, Dr. Van Grouw was the sole defendant,
plaintiff having previously settled with all other defendants.
2
   For simplicity, for the remainder of this opinion the term
"plaintiff" shall refer to Reginald P. Gamble only.
                                2
                                                           A-1562-15T4
meniscus.     Following surgery, defendant prescribed a cryotherapy

device (device) for plaintiff to use at home to help control

post-surgical pain and swelling.     When in use, cold water from

the device flowed across plaintiff's bandaged knee.

    Defendant testified that both he and his staff instructed

plaintiff to use the device continuously during the first

seventy-two hours following surgery and, thereafter, as needed

to control any pain or swelling.     In addition, in general he

advises all patients using the device to contact him if any

"issues" arise with respect to "drainage, redness, warmth."

    Plaintiff testified he used the device continuously during

seventy-two hours immediately following surgery and as necessary

thereafter.    Starting with the third day following surgery,

plaintiff used the machine every other hour for an hour.      On May

18, 2009, the fifth day following surgery, plaintiff began to

feel numbness in his knee.     Because he was also experiencing

what he believed was an abnormal amount of swelling and

bleeding, plaintiff contacted and saw defendant in his office

that day.

    According to defendant's office notes, plaintiff complained

of having a lot of pain in his knee, swelling, and some

bleeding.     Defendant testified fluid had accumulated in

plaintiff's knee, making it appear swollen, a common post-
                                3
                                                             A-1562-15T4
operative occurrence.     It is not disputed defendant aspirated

the fluid from the knee and instructed plaintiff to return in a

week for another checkup.

       On May 26, 2009, plaintiff returned to defendant's office

for the scheduled follow-up visit, during which defendant's

office notes reflect fluid had again accumulated in the knee.

Defendant again drained the knee, but testified the knee

"appeared to be good," and that there was nothing that made him

"overly concerned."     Plaintiff testified his knee was still

painful at that second office visit and that defendant advised

him to continue using the cryotherapy device as needed for pain.

       On June 4, 2009, plaintiff returned to defendant's office

for a follow-up visit.     Defendant's office notes reflect

plaintiff was complaining of "a lot" of pain, tenderness, and

swelling.    Plaintiff testified there was "dark black skin" and

blisters forming on his knee; defendant's office notes do not

mention changes in plaintiff's skin color or the presence of

blisters.    Defendant testified he found a small amount of fluid

in the knee, which he did not consider to be abnormal.        He

directed plaintiff to attend physical therapy because the

muscles around the knee had grown weak and stiff from lack of

use.


                                  4
                                                              A-1562-15T4
       On June 12, 2009, plaintiff called defendant's office

seeking renewal of a prescription for pain medication.

Defendant's office notes indicate plaintiff reported he was

"doing better" and that physical therapy was "going well."

However, on June 20, 2009, plaintiff went to an emergency room

because he was experiencing increased knee pain and nausea; he

was subsequently admitted into the hospital, where he remained

until August.    Defendant did not treat plaintiff after June 20,

2009.

       At the time of his admission, significant eschar was noted

to have formed over a wound on plaintiff's knee; eschar is dead,

necrotic tissue.    Two days after plaintiff's admission, the

eschar was surgically debrided3 in an effort to induce new skin

to grow.    However, the wound over plaintiff's knee did not heal,

and additional eschar developed and had to be removed.

       Subsequent testing and additional surgical procedures

revealed the bones and joints of plaintiff's knee were

deteriorating as the result of osteomyelitis, an infection of

the bone.    In fact, there was concern plaintiff would lose his

leg.    When plaintiff was discharged in August, the fate of his

leg was still uncertain.    Eventually, his treating physicians

3
   Debridement is the removal of damaged tissue or foreign
objects from a wound. Stedman's Medical Dictionary 496 (28th
ed. 2006).
                                5
                                                          A-1562-15T4
were able to salvage the leg by fusing plaintiff's knee.

    Plaintiff filed a medical malpractice complaint against

defendant, alleging he committed various deviations from

accepted standards of medical care during the period immediately

following the arthroscopy.   Plaintiff further contended that as

a proximate result of such deviations, he was forced to and will

endure pain and suffering, including but not limited to the

fusion of his knee.

    During trial, each party called various medical experts on

the issue of liability and damages.     The most sharply contested

issue was proximate causation.   We address this issue first

because not only was it the most controversial, it also puts the

alleged deviations into perspective.

    One of plaintiff's liability experts, orthopedist Stephen

H. Marcus, M.D., opined the device caused a thermal injury or

"freezer burn" to plaintiff's knee, and did so within the first

seventy-two hours of the arthroscopy.     Marcus claimed

plaintiff's complaints during the post-operative period were

caused by the thermal injury, and opined the skin over

plaintiff's knee likely exhibited a change in appearance that

defendant failed to recognize.

    The expert opined that had defendant properly examined

plaintiff on June 4, 2009, he would have noted, consistent with
                                6
                                                           A-1562-15T4
plaintiff's observations at that time, signs consistent with a

thermal injury, specifically, blistering of the skin and the

start of the formation of eschar, which is black in color.

Marcus did not state what steps defendant could or should have

taken had he recognized plaintiff sustained the alleged thermal

injury during the post-operative visits.

    Marcus concluded plaintiff ultimately required a fusion of

his knee for the following reason.    The thermal injury destroyed

the skin on plaintiff's knee, requiring surgical procedures to

debride the dead tissue.    While recuperating in the hospital

from such procedures, although bandaged, plaintiff's knee was

exposed to certain bacteria found in hospital environments.

Such bacteria invaded the wound and subsequently penetrated the

bones of plaintiff's knee.    The bacteria caused osteomyelitis,

which destroyed the bones in plaintiff's knee, necessitating a

fusion.

    Arnold Lentnek, M.D., plaintiff's infectious disease

expert, similarly opined plaintiff sustained a thermal injury

caused by the cold water the device circulated over plaintiff's

knee, and that such injury likely occurred within seventy-two

hours of the arthroscopy.    He also stated the thermal injury

destroyed the tissue around the knee and, while plaintiff was in

the hospital recuperating from procedures to treat such injury,
                                7
                                                          A-1562-15T4
bacteria entered the wound and eventually infiltrated the bones

in plaintiff's left knee, necessitating the fusion.

    Plaintiff's experts testified defendant's principal

deviations from the standard of care were his failure to: (1)

review the FDA label on the device, which warned it may cause

frostbite, before prescribing the device to plaintiff; (2) warn

plaintiff he might suffer a thermal injury as a result of using

the device; (3) personally instruct plaintiff on how to use the

device, instead of relegating such task to his staff; (4) advise

plaintiff he should not use the device continuously for seventy-

two hours; (5) advise plaintiff to contact him if the skin over

his knee became red or the sensitivity of the skin changed; and

(6) recognize plaintiff had sustained a thermal injury during

the post-operative office visits and advise plaintiff to suspend

the use of the device.

    On the issue of proximate cause, Michael McIlroy, M.D.,

defendant's infectious disease expert, opined that when

plaintiff went to the emergency room on June 20, 2009, he was

suffering from bullous cellulitis, a blistering form of

infection of the skin.   McIlroy pointed out that, early in his

admission, tissue removed from plaintiff's left knee was

analyzed and revealed the presence of inflammatory cells.     He


                                8
                                                           A-1562-15T4
testified such findings showed an infection was present and is

not indicative of a thermal injury.

    In addition, he noted the tissue was sent to a microbiology

laboratory, where a gram stain revealed gram-positive cocci were

infiltrating the tissue of plaintiff's knee.   McIlroy testified

such results were "one hundred percent" proof plaintiff's knee

was not only infected, but significantly so.   He stated the

morphology of the cocci was highly consistent with

Staphylococcus aureus (staph aureus), an "aggressive" infection

capable of causing the damage to plaintiff' knee.    He also

mentioned eschar forms when one has bullous cellulitis.

    McIlroy further testified the infection in plaintiff's knee

was going to occur regardless of plaintiff's use of the device;

in fact, he opined in all probability the cool water from the

device kept the infection localized, retarding it from spreading

up and down plaintiff's leg.   McIlroy also noted there were some

systemic signs of infection when plaintiff appeared in the

emergency room.   For example, although plaintiff's white blood

count was normal, neutrophils, the cells that fight bacteria,

were elevated and very suggestive of infection.

    Orthopedist Joseph Bosco, M.D., defendant's expert on

deviation, conceded defendant deviated from accepted standards

of medical care if he failed to warn plaintiff there was a risk
                                9
                                                          A-1562-15T4
he might sustain a thermal injury if he used the device.     Bosco

also testified defendant deviated if he did not instruct

plaintiff on how to use the device and to look for redness,

blisters, and increased pain.   Otherwise, according to Bosco,

defendant did not deviate from accepted standards of medical

care.

    Bosco further testified it is more likely than not

plaintiff did sustain a thermal injury from the device, although

added he was not convinced plaintiff did so to a "medical

certainty."   However, Bosco did not opine such injury was the

proximate cause of the subsequent injuries and damages plaintiff

claims in this matter.

    As previously stated, the jury found defendant deviated

from accepted standards of medical care, but found such

deviations were not a proximate cause of his injuries.

Following the verdict, plaintiff filed a motion requesting

judgment notwithstanding the verdict, a mistrial, or new trial.

The trial court denied the motion and this appeal ensued.

    There was additional evidence adduced and some procedural

developments that arose during the trial relevant to the issues

on appeal.    For brevity and clarity, we summarize such evidence

and developments when we address the particular argument to

which they pertain.
                                 10
                                                           A-1562-15T4
                                  II

    On   appeal,   defendant   reprises   for   our   consideration   the

following arguments asserted in his post-trial motion before the

trial court:

          POINT I: THE TRIAL COURT COMMITTED HARMFUL
          ERROR BY FAILING TO SUBMIT SEPARATE JURY
          INTERROGATORIES AS TO EACH ALLEGED DEVIATION
          FROM ACCEPTED STANDARDS OF PRACTICE ON THE
          PART OF DEFENDANT, INCLUDING (A) FAILURE TO
          WARN, (B) FAILURE TO PROPERLY INSTRUCT, AND
          (C) FAILURE TO TIMELY DIAGNOSE AND TREAT
          PLAINTIFF'S THERMAL INJURY.

          POINT II: THE TRIAL COURT COMMITTED HARMFUL
          ERROR BY REFUSING TO INCLUDE AN INFORMED
          CONSENT JURY CHARGE.

               A. THE TRIAL COURT COMMITTED HARMFUL
               ERROR BY REFUSING TO INCLUDE AN
               INFORMED CONSENT JURY CHARGE INSOFAR AS
               THE LEARNED INTERMEDIARY DOCTRINE WAS
               RULED TO APPLY AS A MATTER OF LAW.

               B. THE TRIAL COURT COMMITTED HARMFUL
               ERROR BY REFUSING TO INCLUDE AN
               INFORMED CONSENT JURY CHARGE SINCE THE
               PLAINTIFF PROVIDED AN ADEQUATE
               EVIDENTIAL FOUNDATION IN SUPPORT OF
               SUCH CHARGE.

          POINT III: SINCE THE DOCTRINE OF INFORMED
          CONSENT SHOULD HAVE BEEN CHARGED TO THE
          JURY, THE TRIAL COURT ABUSED ITS DISCRETION
          IN DENYING PLAINTIFF'S MOTION TO BAR ANY
          REFERENCES AS TO THE DOCTRINE OF AVOIDABLE
          CONSEQUENCES.

          POINT IV: THE TRIAL COURT ABUSED ITS
          DISCRETION BY DENYING PLAINTIFF'S MOTION FOR
          PARTIAL JUDGMENT REGARDING DEFENDANT'S

                                  11
                                                               A-1562-15T4
         FAILURE TO OBTAIN PLAINTIFF'S INFORMED
         CONSENT.

         POINT V: THE TRIAL COURT ABUSED ITS
         DISCRETION BY DENYING PLAINTIFF'S MCKENNEY
         MOTION WHEREIN A CURATIVE INSTRUCTION WAS
         REQUESTED BASED UPON THE DEFENDANT'S
         MATERIAL CHANGE IN TESTIMONY.

         POINT VI: THE TRIAL COURT ABUSED ITS
         DISCRETION IN DENYING PLAINTIFF'S MOTION FOR
         A MISTRIAL BASED UPON THE JURY'S MISCONDUCT
         AND FAILURE TO FULLY AND FAIRLY DELIBERATE.

We separately address each contention.

                               A

    During its final charge to the jury, the court instructed:

         When a physician prescribes a medical device
         approved by the [FDA], the prescribing
         physician assumes a duty from a manufacturer
         of a device to warn patients of known
         potential risks associated with the use of
         the device.

         The court has found as a matter of law that
         it was solely the defendant's legal duty to
         inform and warn the plaintiff, Reginald
         Gamble, regarding the cryotherapy devices.

         Next, I'm going to move on to a discussion
         of duty and negligence.

         Plaintiffs . . . contend that the defendant
         . . . was [1] negligent in failing to
         properly warn and inform the plaintiff
         regarding the cryotherapy device, [2]
         negligent in instructing the plaintiff on
         the usage of the cryotherapy device, and [3]
         negligent in the failure to diagnose and
         threat the alleged thermal injury of
         plaintiff . . . .

                               12
                                                        A-1562-15T4
    On the issue of deviation and proximate causation, the

verdict sheet instructed the jury to answer the following two

interrogatories:

            1. Have the plaintiffs proven by a
            preponderance of the evidence that the
            defendant, Brian Van Grouw, D.O., deviated
            from accepted standards of medical practice?

            2. Have the plaintiffs proven by a
            preponderance of the evidence that said
            negligence was a proximate cause of injury
            to the plaintiff Reginald P. Gamble?

The jury answered "yes" to the first and "no" to the second

question.

    Plaintiff did not object to the charge, but did object to

the fact that the three deviations set forth in the charge were

not broken down into three separate questions on the verdict

sheet.   On appeal, he argues the verdict was ambiguous because,

in answering the first of the two questions cited above, it is

not known which of the three alleged deviations the jury found.

Plaintiff further contends the verdict on deviation was

"inherently inconsistent and contradictory" when compared to the

verdict on proximate cause.    Plaintiff's complaint about the

alleged deficiency of the verdict sheet is confined to the

allegation defendant deviated by failing to diagnose and treat a

thermal injury.


                                 13
                                                           A-1562-15T4
    Plaintiff argues that if the jury found defendant deviated

because he failed to treat and diagnose a thermal injury, then

the jury inherently found plaintiff did sustain a thermal injury

and, therefore, "the jury's final determination as to proximate

cause was completely contradictory to its finding of

[deviation]. . . .   As such, . . . the trial court's ambiguous

and incomplete interrogatories were clearly capable, and did in

fact, produce an unjust result in the form of a completely

inconsistent jury verdict."    We disagree.

    "[A] trial court's interrogatories to a jury are not

grounds for a reversal unless they were misleading, confusing,

or ambiguous."    Sons of Thunder v. Borden, 148 N.J. 396, 418

(1997).    Further, when "reviewing an interrogatory for

reversible error," the interrogatory should be "consider[ed]

. . . in the context of the [jury] charge as a whole," as "[a]n

accurate and thorough jury charge often can cure the potential

for confusion that may be present in an interrogatory."    Ponzo

v. Pelle, 166 N.J. 481, 491 (2001) (citing Thunder, 148 N.J. at

415-20).

    First, we note that, although there was evidence from

plaintiff's experts that defendant deviated because he allegedly

failed to recognize the signs of thermal injury, there was no

evidence about the treatment defendant was required to
                               14
                                                           A-1562-15T4
administer once such injury manifested itself, other than to

advise plaintiff to suspend using the cryotherapy device.

    Second, and more important, even if plaintiff sustained a

thermal injury, the jury found such injury was not a proximate

cause of his damages.   Plaintiff contended a thermal injury

caused the tissue around his knee to deteriorate, the reason he

went to the hospital on June 20, 2009.   Then, while in the

hospital for treatment of such condition, he contracted an

infection that caused him to develop osteomyelitis.   The

osteomyelitis in turn caused the destruction of the bones in his

knee, necessitating a fusion.

    Defendant, on the other hand, contended the problem

plaintiff was having with his knee when he entered the hospital

was not caused by a thermal injury but by bullous cellulitis, an

aggressive form of infection.   Defendant claims this particular

infection, not a thermal injury, proximately caused plaintiff's

damages.

    In our view, there was ample evidence for the jury to find

plaintiff's injuries were caused by bullous cellulitis.     The

jury was at liberty to reject the evidence plaintiff introduced

in support of his claim the proximate cause of his damages was a

thermal injury.   Accordingly, even if the jury found defendant

deviated from accepted standards of medical care by failing to
                               15
                                                            A-1562-15T4
diagnose and treat a thermal injury, it is obvious from its

answer to the second question on the verdict sheet the jury

determined such injury was not a proximate cause of plaintiff's

damages.

                                B

     Defendant next contends the trial court erred when it

declined to charge the jury on informed consent.   Defendant

argues that, because the learned intermediary doctrine4 applied

and he provided sufficient evidence thermal injury is a risk of

using the subject device, the court was obligated to charge the

jury on informed consent.   He maintains the trial court's

refusal to "include an informed consent charge was not only

inconsistent, but also clearly prejudicial to the plaintiffs[,]"




4
   Because a physician functions as an intermediary between
manufacturer and consumer, under the learned intermediary
doctrine, "a pharmaceutical manufacturer generally discharges
its duty to warn the ultimate user of prescription drugs by
supplying physicians with information about the drug's dangerous
propensities." Niemiera by Niewmiera v. Schneider, 114 N.J.
550, 559 (1989).

     Just before trial, the court determined such doctrine
applied in this matter. As indicated by the excerpt from the
jury charge recited above, consistent with its ruling, the court
instructed the jury that "[t]he court has found as a matter of
law that it was solely the defendant's legal duty to inform and
warn the plaintiff, Reginald Gamble, regarding the cryotherapy
devices."

                                16
                                                         A-1562-15T4
especially given defendant admitted he did not warn plaintiff of

the risk of thermal injury.   We disagree.

    "[A] patient has several avenues of relief against a

doctor: (1) deviation from the standard of care (medical

malpractice); (2) lack of informed consent; and (3) battery."

Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 545

(2002) (citing Colucci v. Oppenheim, 326 N.J. Super. 166, 180

(App. Div. 1999)).   "Although each cause of action is based on

different theoretical underpinnings, 'it is now clear that

deviation from the standard of care and failure to obtain

informed consent are simply sub-groups of a broad claim of

medical negligence.'"   Ibid. (quoting Colucci, 326 N.J. Super.

at 180).

    To prove a physician was negligent premised upon a theory

of lack of informed consent, a plaintiff must show:

           (1) the physician failed to comply with the
           applicable standard for disclosure; (2) the
           undisclosed risk occurred and harmed the
           plaintiff; (3) a reasonable person under the
           circumstances would not have consented and
           submitted to the operation or surgical
           procedure had he or she been so informed;
           and (4) the operation or surgical procedure
           was a proximate cause of plaintiff's
           injuries.

           [Newmark-Shortino v. Buna, 427 N.J. Super.
           285, 304 (App. Div. 2012) (quoting Teilhaber
           v. Greene, 320 N.J. Super. 453, 465 (App.
           Div. 1999)).]
                                17
                                                           A-1562-15T4
Here, the "procedure" at issue was the use of the cryotherapy

device, and the undisclosed risk was thermal injury.

    In light of the jury's determination defendant's deviations

from accepted standards of medical care were not the proximate

cause of his damages, the court's failure to charge the jury on

informed consent was entirely harmless and clearly not capable

of producing an unjust result.     See R. 2:10-2 ("Any error or

omission shall be disregarded by the appellate court unless it

is of such a nature as to have been clearly capable of producing

an unjust result . . . .").     As is evident from the jury's

verdict, neither a thermal injury nor the procedure was deemed a

proximate cause of plaintiff's injuries.

                                  C

    Plaintiff contends the doctrine of avoidable consequences

did not apply in this matter.    The doctrine of avoidable

consequences "provides that, in instances in which a defendant

has committed an actionable wrong, damages flowing from that

wrong will be precluded to the extent that they could have been

averted by an exercise of reasonable care by the injured party."

Geler v. Akawie, 358 N.J. Super. 437, 458 (App. Div. 2003).

    In his brief before us, plaintiff claims defendant made

"numerous references to the plaintiff's alleged misuse of the

                                  18
                                                             A-1562-15T4
cryotherapy device and alluded to his 'responsibility' regarding

same.   These references were entirely inappropriate and clearly

prejudicial to plaintiffs."

    With one exception, contrary to Rule 2:6-2(a)(5), plaintiff

fails to provide citations to the record in support of his

assertion defendant made numerous comments that plaintiff had

misused the device.   In the one instance for which he does

provide a citation to the trial transcript, the record reveals

defense counsel asked plaintiff if he agreed it was his

responsibility to read and fully understand the instructions

that came with the cryotherapy device.    Plaintiff's counsel

immediately objected and the court sustained the objection.

Defendant then withdrew the question.

    We are fully satisfied plaintiff was not in any way

prejudiced by this question.   Further discussion on this point

is unnecessary.

                                 D

    Plaintiff contends the trial court erred when it denied his

motion for a mistrial.    Plaintiff had contended a juror engaged

in misconduct and failed to fully and fairly deliberate.      The

details are as follows.

    The jury began its deliberations at 2:18 p.m. on April 21,

2015 and was discharged for the day at approximately 4:30 p.m.
                               19
                                                           A-1562-15T4
The jury resumed deliberations the following day at 9:20 a.m.

At approximately 11:01 a.m., the court asked through court staff

if the jury wanted a recess; the jury responded it needed "five

more minutes."

    At 11:08 a.m., juror six caught the court clerk's attention

by opening the door of the jury room.   The juror informed the

clerk she had just learned her son had been arrested and was

"really upset."   The juror retreated to the jury room with the

rest of the jurors.

    While the jury remained in the jury room, the court

discussed with counsel how best to proceed.   The court

determined the jury would take a break and, in the meantime, the

court and counsel would bring juror six into chambers to discuss

her problem.   The court then brought the jury out to the court

room and asked if it was ready for a break.   A juror replied the

jury had reached a verdict.   The jury remained in the court room

and the court took the verdict.

    After the jury was discharged but before counsel left the

court room, plaintiff's counsel requested a mistrial because,

"clearly [juror six] had her cell phone accessible and was, at

minimum, receiving a call or looking at text messages. . . .

And the timing of that all was really in close connection with

this jury's verdict."   In a brief he subsequently filed,
                                20
                                                            A-1562-15T4
plaintiff argued juror six's access to the electronic device

tainted the jury deliberation process and invalidated the

integrity of the verdict.

    We note that, at the outset of the trial, the jury was

instructed that while in the jury room, all cell phones and

other communication devices had to be turned off.   The jury was

advised it would be given a telephone number at which a juror

could be contacted during the trial, if need be.

    The trial court denied the motion for a mistrial, finding:

         While it does indeed appear that juror
         number six accessed an electronic device
         from which she learned about her son's
         crisis, the event did occur contemporaneous
         to the conclusion of the deliberations. One
         must carefully analyze the timing. . . .
         [I]t is clear that juror number six merely
         put on her device after the deliberations
         were complete. . . . [B]etween 11:08 a.m.
         and 11:14 a.m., juror [six] informed [the
         court] of the issue. A sidebar conference
         was held regarding the issue and before the
         discussion was completed, the jury returned
         their verdict. The jury was then polled and
         dismissed at 11:14 a.m.

         It is intuitive that in the six minutes at
         issue there could be no opportunity for
         juror number six to influence the other
         jurors. There simply was inadequate time to
         do so. Thus, one must come to no other
         conclusion that the deliberations were
         complete after which juror number six
         accessed her device. One must also come to
         the conclusion that the jurors were at the
         end of the deliberative process when they
         requested a few minutes more. It is
                              21
                                                         A-1562-15T4
         certainly reasonable, observing the process
         as a whole, to find the jury was merely
         completing the final form when juror number
         six put on her cell phone and received her
         distressing news. The deliberations were
         completed at that point.

    The court also noted plaintiff did not object to receiving

the verdict when the jury advised the court it had a verdict,

and did not request, before the jury was discharged, further

exploration into when juror six received the news of her son's

arrest in relation to when the jury concluded its deliberations.

    On appeal, plaintiff argues the trial court abused its

discretion by denying his motion for a mistrial, contending the

"events clearly evidence[]" juror six learned of her son's

arrest only a short time before the jury reached its verdict.

Plaintiff asserts because she was in a state of stress, juror

six was unable to properly deliberate and may have rushed to

conclusions on some of the issues just to hasten deliberations.

    "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)).   "Whether manifest necessity mandates the

grant of a mistrial depends on the specific facts of the case

and the sound discretion of the court."   State v. Allah, 170

                                22
                                                           A-1562-15T4
N.J. 269, 280 (2002) (citing State v. Loyal, 164 N.J. 418, 435

(2000)).   In addition, when the basis for the requested mistrial

is alleged juror misconduct, the trial court is in the best

position to gauge the effect of the alleged juror impropriety

and defer to its decision on a motion for a mistrial.     State v.

Harvey, 151 N.J. 117, 205 (1997).

    In our view, the trial court did not abuse its discretion

when it denied plaintiff's motion for a mistrial.    The court

carefully reviewed the timing of how events unfolded and

determined it unlikely the verdict was reached after juror six

accessed her phone.   We agree with the court's assessment and

conclusions, and affirm its decision on plaintiff's motion for

the reasons set forth in its opinion.

                                E

    We have considered plaintiff's remaining argument points,

and have determined they are without sufficient merit to warrant

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

    Affirmed.




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