Plaintiff Elaine Kelly was injured in a motor vehicle accident on July 8, 2016 and filed a lawsuit against defendants Norma Marcano and Max Marcano. The matter was tried before a jury, who unanimously found the accident was caused by the negligence of defendant Max Marcano, found the plaintiff was not comparatively negligent, and awarded plaintiff $140,000 in damages. The issue in Kelly v. Marcano, (App. Div. Feb 16, 2023) was whether the defendants were deprived of a fair trial when they were only accorded three peremptory challenges, as opposed to the required six peremptory challenges.
This case was initially scheduled for trial on December 14, 2020 but adjourned and relisted for trial several times. Ultimately, the case was tried on November 1, 2021. Neither party consented to an expedited jury trial (EJT) but an order for a virtual jury trial was entered which contained several provisions, identifying the trial as an EJT. Pursuant to this order, each party was limited to three peremptory challenges, as opposed to the six peremptory challenges permitted in a non-expedited trial.
During jury selection, defense counsel exercised the three peremptory challenges. Following the charge conference, defense counsel moved for a mistrial based on the virtual trial format. The defendants claimed that the disadvantages in the virtual jury selection, the reduction to the three peremptory challenges and the technical difficulties throughout the virtual trial impacted the presentation of the defendants’ case. There was some confusion as to the amount of challenges which were to be permitted. Plaintiff’s counsel was under the impression that each party had six challenges the whole time. The judge denied the defendants’ motion. Thereafter, the judge acknowledged the court’s mistake but the trial continued, resulting in the verdict for the plaintiff.
The defendants filed a motion, requesting a new trial, contending that the trial court’s mistake and denial of three peremptory challenges denied defendants a “substantial right” and warranted a new trial. The defendants also moved on other reasons as well. The plaintiff argued that even if the trial court order created a misunderstanding as to the amount of peremptory challenges, because defense counsel was silent during jury selection, it was harmless error. The trial judge decided that a new trial was necessary based upon the issues with regard to the challenges and misunderstandings by counsel and, hence, awarded a new trial.
This decision to award a new trial was appealed by the plaintiff. The Appellate Division noted that a jury verdict would not be reversed “unless it clearly appears that there was a miscarriage of justice under the law.” Further, the Court noted that in “evaluating the decision to grant or deny a new trial, an appellate court must give due difference to the trial court’s feel of the case.”
In applying these principles, the Appellate Division found no basis to disturb the trial court’s decision to grant defendants’ motion for a new trial. The Court noted that after examining the record, it found that the parties did not consent to an EJT and the judge appropriately acknowledged the error limiting each party to three peremptory challenges in the order for the virtual trial.
The Appellate Division was “convinced” that defendants were deprived of a fair trial when they were only accorded three peremptory challenges. Thus, it found that the trial judge appropriately concluded that the jury verdict resulted in a miscarriage of justice. Hence, the Court affirmed the trial court’s order granting the defendants a new trial.