Professional Negligence Law Reporter

A New Jersey appellate court held that a trial judge did not err by distributing a photograph of the plaintiff’s deceased child to potential jurors during jury selection.

Jennifer O’Connor sued the Riverside Pediatric Group, alleging that the defendant’s failure to properly examine her 18-month-old son had deprived him of the opportunity to undergo a life-saving bone marrow transplant. During jury selection, the court distributed a jury questionnaire to the jury pool attached to a photograph of the child while he was in critical condition in a hospital intensive care unit. The jury subsequently found for the defense, and the plaintiff appealed, arguing, in part, that the court had erred in allowing potential jurors to view the emotionally charged photograph.

Affirming, the appellate court rejected the plaintiff’s argument that allowing potential jurors to view her child’s photo tainted the jury selection process. Just two excused jurors cited the photograph as the reason why they could not remain impartial, the court said, adding that the other excused jurors cited more general reasons, including loss of a young relative or their work with young children. The court also rejected the plaintiff’s argument that showing the photograph led to an absence of parents on the jury and the selection of jurors who are biased against children.

The court found that there was no systematic exclusion of jurors with children and that the plaintiff just happened to have drawn an array that had an unusually high percentage of people without children. Notwithstanding this, the court added, parents are not a constitutionally cognizable group, and their unintentional exclusion from the jury was not discriminatory.

Citation: O’Connor v. Riverside Pediatric Grp., 2020 WL 5230375 (N.J. Super. Ct. App. Div. Sept. 2, 2020).