                                NOT FOR PUBLICATION WITHOUT THE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-2334-15T4

SANGHAMITRA SENGUPTA and
ARIJIT SENGUPTA,

           Plaintiffs-Appellants,

v.

SAINT BARNABAS MEDICAL
CENTER, ALAN MARTINEZ, M.D.,
and SARAH LITTLE, M.D.,

           Defendants,

and

ROBERT TAYLOR, M.D.,

     Defendant-Respondent.
______________________________

                    Argued September 28, 2017 – Decided September 14, 2018

                    Before Judges Simonelli, Haas and Gooden Brown.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Docket No. L-0898-13.

                    Michael P. Mangan argued the cause for appellants
                    (Mangan Ginsberg, LLP, attorneys; Michael P.
            Mangan, of counsel and on the briefs; Christina M.
            Martinez, on the briefs).

            Christine M. Jones argued the cause for respondent
            (Farkas & Donohue, LLC, attorneys; David C.
            Donohue, of counsel; Christine M. Jones, on the brief).

PER CURIAM

      In this medical malpractice action, plaintiffs Sanghamitra and Arijit

Sengupta, husband and wife, appeal from the December 29, 2015 Law Division

order, entering judgment after a jury verdict in favor of defendant Robert Taylor,

M.D. Plaintiffs also appeal from the February 5, 2016 order, denying their

motion for a new trial. Because we conclude that the trial court mistakenly

exercised its discretion by allowing a juror to serve after acknowledging a

conflict of interest, we now reverse.

      On January 31, 2013, plaintiffs filed a four-count complaint against

defendants Taylor, Saint Barnabas Medical Center (Saint Barnabas), Alan

Martinez, M.D., Sarah Little, M.D., and fictitious parties after Sanghamitra1

underwent    a   total   abdominal      hysterectomy   with   bilateral   salpingo-




1
  We refer to plaintiffs by their first names to avoid any confusion caused by their
common surname. We intend no disrespect.



                                          2                                 A-2334-15T4
oophorectomy 2 (TAH/BSO) performed by Taylor at Saint Barnabas.                   The

complaint alleged medical malpractice, negligence, and lack of informed

consent in Sanghamitra's diagnosis, treatment, and care. In count four of the

complaint, Arijit claimed a loss of consortium.

      With the exception of Taylor, all defendants were voluntarily dismissed

prior to trial, which commenced with jury selection on December 1, 2015.

According to the evidence presented at trial, Sanghamitra went to the Saint

Barnabas emergency room on February 3, 2011, complaining of a number of

symptoms, including heavy vaginal bleeding, abdominal pain, and cramping.

She was admitted to Saint Barnabas later that day under the care of Taylor, a

gynecologic oncologist, who ordered several tests.

      Based on an ultrasound, blood tests, and other studies, Taylor suspected

that Sanghamitra had cancer and recommended a TAH/BSO.3 When he met


2
    "In a total hysterectomy, the uterus and cervix are removed. In a total
hysterectomy with salpingo-oophorectomy, (a) the uterus plus one (unilateral) ovary
and fallopian tube are removed; or (b) the uterus plus both (bilateral) ovaries and
fallopian tubes are removed." NCI Dictionary of Cancer Terms, Nat'l Cancer Inst.
(last visited July 13, 2017), https://www.cancer.gov/publications/dictionaries/cancer-
terms?cdrid=322852.
3
   The ultrasound showed a "right-sided pelvic lesion" that could be an "exophytic
fibroid," which would have been a benign growth on the outside of Sanghamitra's
uterus. However, the radiologist could not "entirely exclude" that the growth seen
in the ultrasound was a "right adnexal pathology," in other words, that it could

                                          3                                   A-2334-15T4
Sanghamitra, who was a registered nurse, for the first time at 10:21 the following

morning, he informed her of his suspicion and recommendation, and told her

that he could do the operation that afternoon or she could wait. However, Taylor

did not recommend waiting to do the surgery because there was a risk of the

cancer growing and he did not believe there was any reasonable alternative to

the surgery.

      After Taylor explained the alternatives to Sanghamitra, she agreed to have

the surgery that day. During the surgery, although Taylor observed multiple

fibroids in Sanghamitra's abdomen, including a large one on the top of her

uterus, he could not find any gross evidence of obvious cancer when he

inspected her ovaries. Nonetheless, due to the high suspicion of ovarian cancer,

he was obligated to remove the organs for pathological analysis in order to get

a definitive answer as to whether cancer was present because performing a

biopsy would risk leaving behind microscopic cancer cells. Thus, Taylor still

performed a TAH/BSO and removed the organs.



alternatively be a cancerous growth attached to Sanghamitra's adnexa, which were
her fallopian tubes and ovaries. A CT scan was also performed, on which the
radiologist observed a hanging right-sided mass at the top of the uterus, which he
noted was a "probable fibroid" but could not exclude malignancy. Additionally, a
urinalysis indicated an elevated beta-HCG level, which could indicate pregnancy or
be interpreted as a cancer marker.

                                        4                                  A-2334-15T4
      After the surgery, although Taylor found tissue that raised suspicion of

possible cancerous growths, he determined that Sanghamitra did not have cancer

and that the suspected mass was a cervical hydatidiform mole, or a "molar"

pregnancy,4 which was extremely rare and could cause serious complications if

untreated, particularly for patients over the age of fifty-five like Sanghamitra.

A pap-smear and a tissue specimen retrieved from Sanghamitra and sent to the

lab prior to the surgery confirmed a molar pregnancy. However, because Taylor

did not request that the lab results be returned on a rush basis, the results were

not received until after the surgery.

      Although Sanghamitra acknowledged signing an informed consent form

authorizing Taylor to perform a TAH/BSO, she claimed Taylor did not advise

her of all of the risks of the procedure and that she had the option of waiting to

get the lab results back that would have shown she was pregnant.            Taylor

explained that had he known the lab results prior to surgery, he still would have

recommended that Sanghamitra undergo a TAH/BSO because this was a very

dangerous location to have an abnormal impregnation and could be life

threatening.



4
  A molar pregnancy is an abnormal form of pregnancy, in which an egg with no
genetic information is fertilized by a sperm but does not develop into a fetus, and
instead continues to grow as a lump of abnormal tissue.
                                        5                                   A-2334-15T4
      Taylor's expert agreed with him and opined that Taylor's treatment was

appropriate and within the standard of care for a gynecologic oncologist. On

the other hand, Sanghamitra's expert opined that observation would have been

the treatment of choice, that Taylor failed to perform an adequate diagnostic

workup in order to determine the appropriate treatment of choice, and if Taylor

wanted to verify what the mass seen on the radiographic films was, he could

have performed an exploratory laparotomy, not a TAH/BSO.                Following

deliberations, the jury returned a no cause verdict in favor of Taylor on

December 17, 2015.

      On December 2, 2015, during jury selection, after plaintiffs exhausted all

peremptory challenges, a prospective juror stated during voir dire that she was

"hesitant" to serve as a juror "because of [her] relationship with [insurance]

carriers." The juror specified that she was an attorney and represented Princeton

Insurance Company in coverage cases. 5 Although she indicated that, based upon

her experience and what she knew about the case, she thought she "could be

fair," she also stated that she would have an "allegiance" to her client, Princeton

Insurance Company.       During a side bar colloquy, defense counsel informed

the court and plaintiffs' counsel that defendant's insurance carrier was, in fact,


5
  We note that the court also stated during the voir dire that Princeton Insurance
Company was "[a] former client of [his]."
                                        6                                   A-2334-15T4
Princeton Insurance Company.        Plaintiffs' counsel promptly objected and

challenged juror number seven for cause, stating that she had a conflict based

on the "connection between her client and the defendant in this lawsuit."

Plaintiffs' counsel reasoned that although she was unaware of the connection,

there was a real danger that it "could come out" during her jury service and

predicted that it was "a potential time bomb." The court overruled counsel's

objection, stating that "[c]overage issues are handled separate and apart from

the other [defense related] issues," and because there was "no coverage issue in

this case," there was "no way she could [find] out about it."

       Thereafter, the court seated the juror as juror number seven, and an eight-

member jury, including juror number seven, was impanelled and sworn. The

parties made opening statements and the trial was adjourned until the following

day.   The following morning, Sanghamitra, the first witness called, began

testifying. In a sidebar colloquy, plaintiffs' counsel noted on the record that a

Princeton Insurance Company representative had been present in the courtroom

observing the proceedings since the start of trial the day before. 6 Later in the

day, plaintiffs' counsel noted on the record that it appeared as if juror number


6
  On the morning of December 3, 2015, before any testimony was taken, plaintiffs'
counsel apparently again objected to the seating of juror number seven. However,
the objection was made in a sidebar conference that was not recorded.


                                        7                                  A-2334-15T4
seven had recognized the Princeton Insurance Company representative in the

courtroom.    Although defense counsel had no objection to removing juror

number seven to avoid "making it an issue," the court refused "to entertain the

issue" at that juncture. Instead, the court indicated that it would have no problem

with counsel stipulating to juror number seven serving as an alternate,

"assuming we have additional alternates," when "we get to the end of the case."

      On the third day of trial, the morning of December 7, 2015, juror number

seven sent a note to the court, stating that she "need[ed] to speak to [the court]

before the trial proceeds." In a sidebar conference before the court and counsel,

but outside the presence of the other jurors, juror number seven informed the

court that she recognized the Princeton Insurance Company representative who

had been in the courtroom observing the trial each day, and knew that she had a

conflict of interest. The court asked whether she had discussed anything with

the other jurors, and she replied "[a]bsolutely not."

      Plaintiffs moved for a mistrial, arguing juror number seven "may have

expressed an attitude or something else" to taint the other jurors. The court

acknowledged that it "could always do a taint hearing[,]" but concluded that it

was not necessary "in this particular situation[.]"        The court denied the

application "without prejudice[,]" noting the timing and sequence of events and

concluding that the issue had not "risen to that level." The court explained that

                                        8                                   A-2334-15T4
juror number seven said she "never said anything to any of [the other jurors]"

and, in light of the fact that "[s]he is an attorney" and "obviously . . . an officer

of the [c]ourt[,]" the court would "take her at her word." Instead, the court

excused juror number seven and explained to the remaining jurors that she was

"excused by the [c]ourt for various emergent reasons" that had "nothing to do

with the merits of the case" but "simply had to do with other issues" and should

not be "consider[ed] in any way, shape or form."

      The trial continued for two weeks, after which the jury returned a no-cause

verdict in Taylor's favor.      The court entered a conforming judgment on

December 29, 2015. Plaintiffs moved for a new trial arguing, among other

things, that they did not receive a fair trial because of juror number seven's

"conflict of interest during the course of her service as a [juror]." On February

5, 2016, following oral argument, the court denied the motion. Specifically, the

court reiterated that "[j]uror [n]umber [s]even ultimately recogniz[ing] the

Princeton [Insurance] claims adjuster" did not "taint[] or prejudice[] this

particular jury" and did not warrant a taint hearing. The court explained "she

hadn't spoken with anyone, she hadn't mentioned anything about the case to any

of the other jurors, and . . . although she still said . . . she could be fair," the

court excused her because it "thought discretion the better part of valor[.]" This

appeal followed.

                                         9                                   A-2334-15T4
      On appeal, plaintiffs argue that "even if juror number seven did not

disclose to the other members of the jury her connection to the [d]efendant[,] "

the court's "refusal to excuse her as a juror before the trial began deprived the

[p]laintiffs of their right to an impartial, unprejudiced jury, requiring reversal of

the jury's verdict." We agree.

             The fundamental right of trial by a fair and impartial
             jury is jealously guarded by the courts. A jury is an
             integral part of the court for the administration of
             justice and on elementary principles its verdict must be
             obedient to the court's charge, based solely on legal
             evidence produced before it and entirely free from the
             taint of extraneous considerations and influences. . . .
             Therefore, the parties to the action are entitled to have
             each of the jurors who hears the case, impartial,
             unprejudiced and free from improper influences.

             [Panko v. Flintkote Co., 7 N.J. 55, 61 (1951).]

      Generally, "trial court decisions whether to excuse prospective jurors for

cause are given substantial deference. They are discretionary decisions which

engage the trial judge's superior ability to evaluate the whole person in the

courtroom." Catando v. Sheraton Poste Inn, 249 N.J. Super. 253, 258 (App. Div.

1991). While "[t]he reported cases on the subject are mostly criminal cases,

. . . . [a] civil litigant is also entitled to an unbiased jury . . . and to responsive

jury selection processes." Id. at 259. The trial court's jury selection process

must be designed to insure the production of a fair and impartial jury. "A juror


                                         10                                    A-2334-15T4
must not only be impartial, unprejudiced and free from improper influences, he

or she must also appear to be so." Id. at 261 (citing Wright v. Bernstein, 23 N.J.

284, 294-95 (1957)). "The litigants' confidence in the basic fairness of the trial

is an important consideration." Id. at 261-62 (citing State v. Jackson, 43 N.J.

148, 160-61 (1964)). "If a party's reasonable apprehension of unfairness can be

avoided without injuring the rights of others, a sound exercise of judgment

favors excusing a juror." Id. at 262.

      To that end, we adopted the rule in civil cases that when "a challenge for

cause is erroneously denied" after "all peremptory challenges have already been

exhausted, and the challenged juror therefore sits, the error requires reversal

. . . ." Id. at 264-65. "[P]rompt raising of the problem, 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." Id. at 265.

      Additionally, because "securing and preserving an impartial jury goes to

the very essence of a fair trial[,]" id. at 258-59, "the court has an independent

duty to act swiftly and decisively to overcome" potential bias. State v. Williams,

93 N.J. 39, 63 (1983). When evidence of juror bias is presented, "[t]he court is

obliged to interrogate the juror, in the presence of counsel, to determine if there

is a taint; if so, the inquiry must expand to determine whether any other jurors

                                        11                                  A-2334-15T4
have been tainted thereby." State v. R.D., 169 N.J. 551, 558 (2001) (citing

Pressler, Current N.J. Court Rules, cmt. 2 on R. 1:16-1 (2000)). If actual juror

taint is possible, the trial court must voir dire the affected juror and, in

appropriate circumstances, the remaining jurors. State v. Bisaccia, 319 N.J.

Super. 1, 13 (App. Div. 1999).

            An appropriate voir dire of a juror allegedly in
            possession of extraneous information mid-trial should
            inquire into the specific nature of the extraneous
            information, and whether the juror intentionally or
            inadvertently has imparted any of that information to
            other jurors. Depending on the juror's answers to
            searching questions by the court, the court must then
            determine whether it is necessary to voir dire
            individually other jurors to ensure the impartiality of
            the jury. That determination should be explained on the
            record to facilitate appellate review under the abuse of
            discretion standard. But the decision to voir dire
            individually the other members of the jury best remains
            a matter for the sound discretion of the trial court. No
            per se rule should obtain. The court may learn through
            its questioning of the excused juror that circumstances
            made it impossible for that juror to impart
            impermissible information to the other jurors even
            unintentionally. Although the court should not simply
            accept the juror's word that no extraneous information
            was imparted to the others, the court's own thorough
            inquiry of the juror should answer the question whether
            additional voir dire is necessary to assure that
            impermissible tainting of the other jurors did not occur.
            In some instances, the court may find that it would be
            more harmful to voir dire the remaining jurors because,
            in asking questions, inappropriate information could be
            imparted.


                                      12                                 A-2334-15T4
            [R.D., 169 N.J. at 560-61.]

      "The trial court must then determine whether the trial may proceed after

excusing the tainted juror or jurors, or whether a mistrial is necessary. " R.D.,

169 N.J. at 558. Any "improper intrusion into the deliberations of a jury that

'could have a tendency to influence the jury in arriving at its verdict in a manner

inconsistent with the legal proofs and the court's charge' is a ground for a

mistrial." State v. Hightower, 146 N.J. 239, 266-67 (1996) (quoting Panko, 7

N.J. at 61). The decision to grant or deny a motion for a mistrial is addressed to

the sound discretion of the trial judge. State v. Winter, 96 N.J. 640, 647 (1984).

Likewise, "[t]he decision to grant a new trial based on jury taint resides in the

discretion of the trial court[.]" R.D., 169 N.J. at 558. The test for determining

whether a new trial will be granted

            is whether such matters could have a tendency to
            influence the jury in arriving at its verdict in a manner
            inconsistent with the legal proofs and the court's
            charge. If the irregular matter has that tendency on the
            face of it, a new trial should be granted without further
            inquiry as to its actual effect. The test is not whether
            the irregular matter actually influenced the result, but
            whether it had the capacity of doing so. The stringency
            of this rule is grounded upon the necessity of keeping
            the administration of justice pure and free from all
            suspicion of corrupting practices.

            [Panko, 7 N.J. at 61-62.]



                                        13                                  A-2334-15T4
       However, a new trial "is not necessary in every instance where it appears

an individual juror has been exposed to outside influence." R.D., 169 N.J. at

559.

             Ultimately, the trial court is in the best position to
             determine whether the jury has been tainted. That
             determination requires the trial court to consider the
             gravity of the extraneous information in relation to the
             case, the demeanor and credibility of the juror or jurors
             who were exposed to the extraneous information, and
             the overall impact of the matter on the fairness of the
             proceedings. The inquiry about whether extraneous
             information had the capacity to influence the result of
             the jury requires an examination of whether there was
             at least an opportunity for the extraneous information
             to reach the remaining jurors when that extraneous
             information is knowledge unique to one juror who is
             excused mid-trial.

             [Ibid.]

See also State v. Wormley, 305 N.J. Super. 57, 70 (App. Div. 1997) (finding

that even though excused juror stated she did not discuss extraneous matter with

anyone, there was a "strong likelihood that, even indirectly or unintentionally,

she may well have," given that there was at least one break during which jurors

commingled informally).

       Here, we are convinced that during jury selection, the court erred in not

excusing juror number seven for cause after plaintiffs' peremptory challenges

were exhausted and after the court became aware of juror number seven's


                                       14                                A-2334-15T4
conflict of interest.   Given her admitted allegiance to her client, Princeton

Insurance Company, it is of no moment that, unlike the court and counsel, juror

number seven was unaware of the actual conflict during the initial voir dire. We

also believe the court's voir dire of juror number seven after she became aware

of the actual conflict was inadequate to determine whether questioning the other

jurors was necessary. Despite juror number seven's response that she did not

discuss anything with the other jurors, the court failed to probe whether she had

inadvertently imparted any information to the other jurors, but simply accepted

her word that no extraneous information was imparted to the others. Without a

thorough inquiry of juror number seven, the court could not properly determine

whether additional voir dire was necessary to assure that impermissible tainting

of the other jurors did not occur.

      On appeal, plaintiffs also argue that the verdict was against the weight of

the evidence, that the jury charge on informed consent was incorrect, and that

defense counsel's cross-examination of Sanghamitra was improper. However,

in light of our disposition on the juror bias issue, we need not address plaintiffs'

remaining arguments.

      Reversed and remanded for a new trial. We do not retain jurisdiction.




                                        15                                  A-2334-15T4
