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| Lipinski v. Krupp, A-0256-15 (App. Div. 2017)
http://njlaw.rutgers.edu/collections/courts/appellate/a0256-15.opn.html Before Judges Simonelli, Carroll and Gooden Brown. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5645-12. Ernest P. Fronzuto argued the cause for appellant (Fronzuto Law Group, attorneys; Mr. Fronzuto and Casey Anne Cordes, on the brief). Scott T. Heller argued the cause for respondents Edward T. Krupp, M.D., and Crescent Internal Medicine Group, LLC (Rosenberg, Jacobs & Heller, P.C., attorneys; Sam Rosenberg and Julianne Cefalu, on the brief). E. Burke Giblin argued the cause for respondent Mamatha G. Mohan, M.D. (Giblin, Combs & Schwartz, LLC, attorneys; Heather M. LaBombardi, on the brief). PER CURIAM Plaintiff Dennis Lipinski, administrator of the estate of Erica Leibowitz-Lipinski, appeals from the September 4, 2015 Law Division order denying his motion for a new trial following an adverse jury verdict on his complaint alleging medical malpractice. Plaintiff argues that "the combined timing, language and circumstances" surrounding the issuance of the trial court's supplemental deliberations charge coerced the jury into reaching an expeditious verdict that manifested a "surrender by one or more of the jurors['] convictions" and caused a "miscarriage of justice[.]" As a result, plaintiff argues that "the verdict is not sustainable" and the court thereby erred in denying his motion for a new trial. We disagree and affirm. I. Because the appeal only raises issues related to the court's instructions after the jury reported reaching an impasse in its deliberations, plaintiff's appeal was presented through abbreviated transcripts. See R. 2:5-3(c). Therefore, we have no record of the factual evidence developed at trial and summarize here only what the court recounted in ruling on the new trial motion and plaintiff alleged in his brief and complaint. Between 2004 and 2010, Erica, the estranged wife of plaintiff, consulted with defendant Margaret T. Snyder, Ph.D. (Snyder), a licensed psychologist. Erica had numerous issues in her personal life, including a recent separation from a boyfriend. Around May 2010, Erica visited defendant Crescent Internal Medicine Group (Crescent) and was treated by defendant Edward T. Krupp, M.D. (Krupp). During this visit, Erica sought medical assistance to quit smoking cigarettes. Krupp wrote Erica a prescription for the drug varenicline, commonly known as Chantix. During a follow-up visit on July 9, 2010, Erica was seen by defendant Mamatha G. Mohan, M.D., (Mohan) who renewed Erica's prescription for Chantix. Tragically, on August 10, 2010, Erica committed suicide at the age of twenty-eight. Erica left behind a suicide note indicating that she was distressed following a break-up with a boyfriend. The Federal Drug Administration (FDA) issued warning material describing many potential "bad side effects" related to the use of Chantix and indicated that a patient should be monitored. The prescribing physicians knew about the potential side effects and told Erica "to report to them if things started to go badly." Subsequent to the issuance of the FDA warnings, a scientific study out of Sweden reported that there was no apparent correlation between the use of Chantix and persons committing suicide. Erica was survived by plaintiff who was designated as the administrator of her estate. On July 31, 2012, plaintiff filed a five-count complaint in the Superior Court against Snyder, Krupp, Mohan and Crescent as well as John Does 1-101 and ABC Corporations 1-10.2 The complaint alleged that defendants "knew or should have known that [Chantix] posed a serious risk of suicide and/or violent tendencies"; defendants "knew or should have known that [Erica] had a history of psychiatric instability"; and defendants "deviated from the accepted standards of medical care and were negligent" as they failed to adequately monitor Erica's use of the drug and failed to warn her about its risks. The complaint alleged that defendants' negligence was the direct and proximate cause of Erica's death and the survivor's suit sought damages and attorneys' fees. On May 7, 2014, plaintiff and defendants Krupp, Mohan and Crescent stipulated to the dismissal of the case against defendant Snyder. A jury trial began on July 14, 2015, and continued until deliberations commenced on July 27, 2015. A total of eleven witnesses testified. Throughout the course of the trial, the jury was repeatedly reassured that the trial was on schedule and that it would conclude no later than July 28, 2015. Following summations and the jury charge, the jury began deliberating at approximately 2:15 p.m. on July 27, 2015, submitted one question to the court at about 3:45 p.m., and deliberated for a total of two hours before being dismissed for the day. Jury deliberations resumed the following day at about 9:15 a.m. The jury submitted two questions to the court before the lunch break. After the lunch break and after a total of seven hours of deliberations, at approximately 3:00 p.m., the jury indicated in a note to the court "[w]e can't come to a verdict. What happens now?" The discussion on the record that followed demonstrated that the court was under the mistaken impression that there was no New Jersey civil model jury charge for a deadlocked jury, only a criminal one. The court discussed with the attorneys the New Jersey criminal model jury charge as well as a New York civil model jury charge for deadlocked juries. The following colloquy ensued between the court and counsel: THE COURT: My law clerk who's very able discovered that we pretty much changed everything. And, all we have left in New Jersey is a . . . three sentence charge. And then after that a four sentence charge. The three sentence charge [is] as follows[:] you have indicated that your deliberations have reached an impasse. Do you feel that further deliberations will be beneficial? Or, do you feel that you've reached a point at which further deliberations would be futile. Please return to the jury room to confer and advise me of your decision in another note. Then, if they come back, you say when you feel a reasonable period of time has gone by subsequent to the delivery of your charge then you . . . ask them to come back and they do. It is your duty as jurors to consult with one another and to deliberate with a view to reach an agreement, if you can do so without violence to individual [judgment]. Each of you must decide the case for yourselves. But, do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations do not hesitate to reexamine your own views and change your opinion if convinced it's erroneous. But . . . do not surrender your honest conviction as to the weight [or] effect of evidence solely because of the opinion -- of your fellow jurors for the mere purpose of returning a verdict. You . . . are not partisans. You are judges, judges of the facts. So it's a two part process. . . . . New York has a long deadlock charge saying . . . remember that no other jury would do better than you etcetera, etcetera. . . . . [W]ould you all want me to use the more fulsome New York charge? . . . . [DEFENDANTS KRUPP'S AND CRESCENT'S COUNSEL]: [T]his is criminal. But, . . . it could be adapted for sure. . . . I have no problem with that judge. . . . . [PLAINTIFF'S COUNSEL]: You're going to do the first one just the short version? THE COURT: I think I should, yes. [PLAINTIFF'S COUNSEL]: Okay. [DEFENDANTS KRUPP'S AND CRESCENT'S COUNSEL]: I think we're all in agreement. [DEFENDANT MOHAN'S COUNSEL]: Yeah, . . . if they come back and say it's worthy of giving a further charge[.] [PLAINTIFF'S COUNSEL]: Right. With the agreement of all counsel, the court instructed the jury as follows: You've indicated that your deliberations have reached . . . an impasse. Go back to the jury room and answer the following question. Do you feel that further deliberations will be helpful to you? Or, do you feel that you've reached a point at which further deliberations would be useless or futile? So, please go to the jury room and confer as to whether further deliberations might be useful . . . or totally . . . futile. So, please return to the jury room to confer and advise me of your decision in another note. After the jury left the courtroom, the court indicated to the attorneys that it "may have read [the jury charge] in the wrong [order]." The attorneys agreed and plaintiff's attorney stated that the court "at least [has] to tell [the jury] that they need to at least try [to reach a verdict]" first. The court agreed and advised that it would read "part of" the New York charge for deadlocked juries. The court immediately summoned the jury back into the courtroom and delivered the following charge: I want to tell you just a couple of things. . . . I know you're having a hard time. But, I do want to tell you that we had a [lengthy] process in selecting a jury. You all were chosen.
After hearing oral argument, on September 4, 2015, the court denied the motion. In denying the motion, the court noted that the jury was careful, attentive and smart. The court observed that the jurors "[cared] a lot"; "went out of their way to disrupt their lives to get here"; and "worked very hard, even during deliberations." In describing the charge, the court stated it was "fair and close to the model charge" but not "perfect[.]" The court also noted that "no exceptions were taken." Regarding the verdict, the court observed that it "was not an unreasonable verdict" and no one "could have been terribly surprised at the verdict." The court reasoned: Our system [of justice] is based on the premise that, for someone to upset a jury verdict, it must be clearly and convincingly shown that there was a substantive or procedural error that would compel disregarding a jury verdict. This is based on our concept that 8 jurors, 12 jurors, whatever the case may be, usually get things right. To upset a jury verdict, one may not speculate. One must prove by clear and convincing evidence that there was a miscarriage of justice. Either . . . substantive . . . or procedural . . . but I don’t think that hurdle can be overcome here. [Plaintiff's attorney] says the jury was that divided. That kind of implies -- it's possible . . . that there were four-four or even five-three and a mass of them switched in a short period of time. We'll never know and we should never know because the jury is entitled to its privacy. It's equally likely that it was six-two and one of the two switched to seven-one but we'll never know. But the important thing is that, that's really speculation. I'm convinced on the record that we do not have any clear and convincing evidence of a miscarriage of justice. Therefore, I will deny the motion. On the same date, the court issued an order entering judgment in favor of defendants and this appeal followed. On appeal, plaintiff argues that he is entitled to a new trial because the timing, context, and language used in issuing the supplemental instructions to the jury coerced them into believing that they had to render a verdict on July 28, 2015, and that the jury process was tainted because they did so in a matter of minutes. Plaintiff further contends that the trial judge failed to properly advise the jury that he did not have the power to compel a verdict, the jury verdict was coerced because dissenting jurors were improperly influenced to change their votes within minutes, and a miscarriage of justice occurred. Plaintiff does not contend that the jury verdict was against the weight of the evidence. II. To support his argument, with the exception of In re Stern, 11 N.J. 584 (1953), plaintiff cites criminal cases almost exclusively. While coercive jury instructions have been the subject of much discussion in criminal appeals, there is scant published precedent in civil cases addressing instructions to a jury that reports an impasse in deliberations. In Stern, a civil case tried to a jury to determine mental competency and the need for a guardian, when the jury reported disagreement after five continuous hours of deliberation, the trial court instructed the jury as follows: Members of the Jury, you realize you have been trying to arrive at a verdict since 11:20 this morning, but we have been here two and a half days and the Court would appreciate it if you could see if you can arrive at a verdict, and therefore asks if you will not go back to the jury room, and the Court is willing to remain here until you arrive at a verdict. You, I am sure, realize that we have been here trying the case hoping to arrive at a verdict. It costs a lot of money to the state to maintain the court, and if you cannot arrive at a verdict it means that it will probably have to be retried which will take several days. See if you cannot arrive at a verdict. You may return to the jury room. [Id. at 587.] The jury in Stern promptly returned with a verdict of incompetency by a vote of ten to two. On appeal, the Supreme Court held that giving the quoted charge was plain error because it coerced the jury to reach a verdict. The Court explained: [W]here the supplementary instruction has a natural tendency to interfere with the exercise of unfettered and unbiased judgment, by means of an illusory consideration or overemphasis of an extraneous factor, and the response is immediate, the inference of false direction and undue influence is entirely reasonable, if not indeed irresistible. Urging a jury to an agreement contrary to the individual opinion and judgment of one of the jurors on the merits of the issue may be coercion. [Id. at 588.] Only one other New Jersey civil case addresses the issue of improper instructions to a disagreeing jury. See Rossetti v. Pub. Serv. Coordinated Transp., 53 N.J. Super. 293 (App. Div. 1958) (holding trial court did not abuse its discretion in granting a new trial because of potentially coercive instruction that included reference to cost of retrial and suggestion that the jury would be required to continue deliberating until it reached a verdict). In this case, plaintiff did not object to the judge's supplemental charge. Consequently, plaintiff may prevail on this appeal only if it was plain error to give the supplementary charge. Gaido v. Weiser, 115 N.J. 310, 311 (1989). The plain error rule permits this court to set aside a judgment even when error was not brought to the attention of the trial court, but only where the error is "clearly capable of producing an unjust result." R. 2:10-2; see Baker v. Nat'l State Bank, 161 N.J. 220, 226 (1999). Courts have described the plain error standard as erroneous action that deprives the litigants of "substantial justice." In re Stern, supra, 11 N.J. at 590; Ford v. Reichert, 23 N.J. 429, 434 (1957). But courts have also said that, in civil cases, the plain error rule "is discretionary and 'should be sparingly employed.'" Baker, supra, 161 N.J. at 226 (quoting Ford, supra, 23 N.J. at 435). We conclude that the trial court's supplementary instruction in this case did not deprive plaintiff of substantial justice and was not clearly capable of producing an unjust result, particularly since the verdict was not "unreasonable." The New Jersey model jury charge which provides instructions for a deadlocked jury in civil trials states: You have informed me that you have been unable as a jury to reach a verdict in this case. I do not wish to know, and I direct each of you jurors not to tell anyone, how your vote stands. Although you have a duty to reach a verdict, if that is possible, I have neither the power nor the desire to compel you to reach a verdict. I do want to emphasize the importance and the desirability of your reaching a verdict in this case provided that each of you can do so without surrendering or sacrificing principle or personal convictions. You will recall that upon assuming your duties in this case each of you took an oath. That oath places upon each of you the responsibility of arriving at a true verdict based upon your own opinion and not merely by agreeing with the conclusions of the other jurors. However, opinions can be changed by discussions in the jury room. The purpose of the jury system is to reach a verdict by comparing views and by considering the evidence with the other jurors. During your deliberations each of you should be open-minded. You should consider the issues with proper attention to and respect for the opinions of each other. You should not hesitate to reexamine your own views in the light of your discussions. You should consider also that this case must be decided at some time. You are selected in the same manner and from the same source from which any future jury must be selected. There is no reason to suppose that the case will ever be submitted to six persons more intelligent, more impartial or more capable of deciding it, or that additional or clearer evidence will ever be presented by one side or the other. You may retire and take as much time as is necessary for further deliberations upon the issues submitted to you for determination. [Model Jury Charge (Civil), 1.20, "Supplemental Instructions as to Further Deliberations by Jury" (2006).]3 While the supplementary charge given by the court was clearly not New Jersey Civil Jury Charge 1.20, it conveyed the critical principles contained in the model charge and did not have the coercive effect of the disapproved instructions given in Stern, supra, or Rossetti, supra. It included no comments about the expenses of retrial, and it did not omit a reminder that individual jurors should not surrender their honest convictions just to reach a verdict. Likewise, it did not suggest that the jury's deliberations might continue indefinitely if it could not reach agreement as condemned by our Supreme Court in State v. Figueroa, 190 N.J. 219, 240-42 (2007). The supplemental charge was balanced. It requested jurors to deliberate "with an open mind" and to "try to view [the evidence] with a fresh slate." It cautioned jurors "don't give up your own views" and "don't just concede for the purpose of conceding." Although the judge did not tell the jurors that he did not have the power or desire to compel agreement, he stated "all I ask you . . . if it's possible, look at it as hard as you can." Such a statement can hardly be characterized as coercive, particularly since the court's initial query to the jurors was for them to confer and determine whether further deliberations "might be useful" or totally "futile." The circumstances here do not present the potential for pressure upon dissenting jurors that was the risk addressed in State v. Czachor, 82 N.J. 392, 399 (1980), and Figueroa, supra, 190 N.J. at 232. The record does not support an inference that the jury was coerced into reaching a verdict and, as the court pointed out, plaintiff's assertions to the contrary are speculative. Despite the timing between the supplemental charge and the verdict, given the length of time the jury had been deliberating, the fact that the jury was not reluctant to ask questions, and the fact that one dissenting voter did not succumb to any purported pressure, the supplemental charge was not coercive, did not include extraneous factors or have "a natural tendency to interfere with the exercise of unfettered and unbiased judgment" of the jurors. Stern, supra, 11 N.J. at 588. We are satisfied that the court did not abuse its discretion in giving a charge in essential conformity with model jury charge 1.20 after the jury had deliberated for seven hours over two days and reported an impasse. Equally unavailing is plaintiff's contention that the court erred in denying plaintiff's motion for a new trial. Affirmed. 1 John Does 1-10 is a fictitious name representing unknown physicians or other health care providers responsible for treating Erica. 2 ABC Corporation 1-10 is a fictitious name representing unknown entities rendering services to Erica. 3 Model charge 1.20 also suggests an alternative that repeats some of the language of Model Jury Charge (Civil), 1.12Q, "Deliberations" (2012). The latter charge is routinely read to jurors in the court's general instructions before the jury begins deliberations. Marpaka v. Patel, A-0181-15 (App. Div. 2017) http://njlaw.rutgers.edu/collections/courts/appellate/a0181-15.opn.html Before Judges Sabatino and Nugent. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-437-13. Bendit Weinstock, P.A., attorneys for appellants (K. Raja Bhattacharya, on the briefs). Purcell, Mulcahy, Hawkins, Flanangan & Lawless, LLC, attorneys for respondent (Rita F. Barone, of counsel and on the brief; Danielle H. Bohlen, on the brief). PER CURIAM This is an appeal from a no-cause verdict in an automobile negligence case. Plaintiff1 Niveditha Marpaka was involved in a motor vehicle accident on Route 27 in Franklin Township on March 19, 2011. Defendant Bhailabh M. Patel drove the vehicle that struck plaintiff's vehicle. Defendant's liability for negligently causing the accident was stipulated and, hence, the sole issues for trial concerned plaintiff's proof of damages. Plaintiff is subject to the lawsuit limitation codified at N.J.S.A. 39:6A-8(a), commonly known as the "verbal threshold." Because of that statutory requirement, plaintiff had the burden of proving by objective proof at trial that she sustained from the accident "a permanent injury within a reasonable degree of medical probability" in order to recover any non-economic damages. Ibid.; see also DiProspero v. Penn, 183 N.J. 477, 480-81 (2005). For purposes of the verbal threshold, "[a]n injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment." Ibid. Plaintiff contended that she had suffered permanent injuries to her neck, back, left upper arm, left wrist and thumb, and knees. Defendant disputed that contention, asserting that injuries to plaintiff's spine in particular were caused by degeneration that preceded the accident, and also that her injuries were not objectively shown to be severe or permanent. The parties presented competing expert testimony on these matters from orthopedic physicians who examined her, Dr. Beacon for plaintiff2 and Dr. Robert J. Bercik for the defense. During the course of Dr. Beacon's expert testimony for plaintiff, he was asked if he would render his opinions in accordance with a reasonable degree of medical certainty or probability. Although we lack a transcript with his exact words, Dr. Beacon apparently expressed his understanding of that "reasonable degree" concept to mean that there was a greater than fifty percent chance that the opinions he was rendering were correct. Later on, during the defense case, Dr. Bercik was likewise asked about the concept of reasonable degree of medical certainty or probability. The transcript of his testimony reflects that he expressed that concept in the following manner: Q Now, doctor, we're going to go through your reports in this case and you're going to issue some opinions in this case at some point in time. I just want to get this out now. You can issue those opinions within a reasonable degree of medical certainty or probability? A Yes. Q And if they aren't, you'll tell us? A Yes. Q And Dr. Beacon, who is plaintiff's expert in this case, he gave a definition of reasonable degree of medical certainty, basically, indicating that he believed a greater than 50/50 chance of his opinions being probable is what I caught. What is your definition of within a reasonable degree of medical probability or certainty? A My understanding is that, if you give an opinion, that more doctors would agree to that opinion than disagree with it, and so more doctors would be supportive of that opinion than against it, and so that's my understanding of what a reasonable degree of medical certainty is. After both sides rested, defense counsel moved to strike Dr. Beacon's expert testimony, contending that his expressed understanding of the concept of "reasonable degree of medical probability or certainty" did not comport with the requirements of law. Plaintiff argued that Dr. Beacon's understanding was proper, and cross-moved to strike Dr. Bercik's expert testimony because he instead allegedly misstated the concept. Both sides claimed that the respective opposing expert's stated definition did not comport with the meaning of "reasonable degree of medical probability" set forth in Schrantz v. Luancing, 218 N.J. Super. 434 (Law Div. 1986), a case in which the trial court struck a medical expert's testimony because that expert showed that he lacked a proper understanding of the concept. The trial judge denied both the motion to strike Dr. Beacon's testimony and the cross-motion to strike Dr. Bercik's own opinions. As we observed in Eckert v. Rumsey Park Assocs., 294 N.J. Super. 46, 51 (App. Div. 1996) (quoting Aspiazu v. Orgera, 205 Conn. 623, 535 A.2d 338, 343 (Conn. 1987)), and as the trial judge in the present case noted, it is not necessary for a testifying expert to use the "'talismanic' or 'magical words' represented by the phrase 'reasonable degree of medical certainty.'" Instead, to admit the expert's testimony, a court only needs to be "persuaded that 'the doctor was reasonably confident of the relationship between the plaintiff's injury and [her] . . . diagnosis and treatment.'" Ibid. The judge also recognized that physicians generally form their opinions in medical terms, rather than legal terms, because they are "not trained as lawyers." With specific reference to Dr. Beacon, the judge first noted that the expert had simply "volunteered" the definition of reasonable degree of medical certainty and had not been asked by counsel to define it. The judge further concluded that the meaning that Dr. Beacon ascribed to the concept was satisfactory, and that his expert opinion could appropriately be considered by the jury. Defendant has not cross-appealed that ruling. As to Dr. Bercik, the trial judge likewise concluded that his expressed understanding of "reasonable degree of medical certainty or probability" was sufficient to enable the jury to consider his professional opinions. The judge stated that the jurors would need to decide which of the two testifying doctors was "more believable[.]" During her closing argument, defense counsel returned to this subject. She suggested that Dr. Bercik's understanding of the concept of "reasonable degree of medical probability" was more persuasive than how Dr. Beacon explained the concept: The other issue is how Dr. Beacon frames his opinion. Again, your memory of how -- of what happened here controls. But I heard Dr. Beacon say that when he was asked whether or not his opinions would be within a reasonable degree of medical probability, he turned and he said, yes, and he said, that means that there's a greater than 50/50 chance that what I'm saying is probable. I'm not so sure I like those odds, but you can take that for what it is. But what Dr. Bercik said was that more physicians than not would agree with what I have to say here. That's a medical opinion. That's an expert medical opinion, sort of like four out of five dentists in the commercials that we see, not that there's a greater than 50/50 chance of what he's saying to be true. That -- I think [Dr. Beacon] was equating it with plaintiff's burden of proof. [(Emphasis added).] The jury returned a verdict for defendant, finding that plaintiff had not met her burden of proving that her injuries from the accident vaulted the verbal threshold. This appeal ensued. Plaintiff makes two related arguments in her briefs: (1) the trial court erred in declining to strike the defense expert Dr. Bercik's testimony because he misunderstood and misstated the "reasonable degree of medical certainty or probability" standard in rendering his opinions; and (2) defense counsel's remarks during her closing argument on this topic were inappropriate and unduly prejudicial, thereby entitling plaintiff to a new trial. We disagree. The concept of "reasonable degree of medical probability or certainty" is not defined in Title 39, nor in any Rule of Court. As the Law Division judge who authored Schrantz described it after consulting case law from other jurisdictions, "[r]easonable medical probability or certainty refers to the general consensus of recognized medical thought and opinion concerning the probabilities of conditions in the future based on present conditions." Schrantz, supra, 218 N.J. Super. at 439 (emphasis added) (citing Boose v. Digate, 107 Ill. App. 2d 418, 246 N.E.2d 50 (Ill. App. Ct. 1969)). A critical aspect of the concept is that the medical opinion testimony must be "couched" in terms of "probability" rather than mere "possibility." Johnesee v. Stop & Shop Cos., Inc., 174 N.J. Super. 426, 431 (App. Div. 1980). "[O]pinions as to possibility are inadmissible." Ibid. (citing Gribbin v. Fox, 130 N.J.L. 357, 359 (Sup. Ct. 1943) aff'd, 131 N.J.L. 187 (E. & A. 1944); In re Quackenbush, 156 N.J. Super. 282, 287 (Cty. Ct. 1978). In Schrantz, the court rejected a medical expert's opinion testimony because he confused the concept of "reasonable degree of medical probability" with the concept of "accepted standards of medical practice" in treating a patient. Schrantz, supra, 218 N.J. Super. at 439. That is not the case here with respect to Dr. Bercik. He couched his understanding of "reasonable degree of medical probability" in terms of the likely consensus of doctors in the field, rather than relating the concept to substantive "standards of care" for medical treatment. We discern no reversible error, nor any manifest injustice, in the trial court's allowance of the expert's testimony, given his phrasing of the concept. As the judge rightly noted, the concept does not require particular "magical words" that must always be invoked. See Eckert, supra, 294 N.J. Super. at 51. Nor did Dr. Bercik impermissibly express his opinions in terms of medical "possibilities" instead of "probabilities." He alluded to what he perceived to be the more accepted view within his profession rather than to a minority view. That is consistent with the "consensus" concept noted in Schrantz. We need not endorse the formulation of either expert in this case as a model, but are satisfied that neither misstated the basic notion. We also reject plaintiff's second argument that the defense counsel in summation unduly prejudiced the jurors by arguing that Dr. Bercik's expression of the "reasonable probability" concept was superior to Dr. Beacon's formulation. Although we are unpersuaded that there is any meaningful difference in how the respective experts described the standard, we do not think counsel's remark was so prejudicial that it "clearly and convincingly appears that there was a miscarriage of justice under the law." See R. 4:49-1(a); see also Bender v. Adelson, 187 N.J. 411, 431 (2006). There is no contention by appellant or indication in the record supplied to us that plaintiff's counsel objected to this portion of the summation. Such inaction creates a presumption that the comment was not sufficiently prejudicial to warrant judicial intervention. Risko v. Thompson Muller Auto Grp., Inc., 206 N.J. 506, 523 (2011). Moreover, even if an objection had been made, the court had the discretion to reject it and instead let the jurors evaluate the case, having been generally instructed to treat the remarks of counsel as mere argument and not evidence. Lastly, we disagree with plaintiff's argument that Dr. Bercik's allusion to what "more doctors" would agree to than would disagree violates the embedded hearsay prohibitions in N.J.R.E. 808 and this court's opinion in James v. Ruiz, 440 N.J. Super. 45 (App. Div. 2015). Unlike the non-testifying radiologist in James, no other doctors who treated or examined plaintiff were referenced in Dr. Bercik's generic comment. This is not akin to the situation in James, where counsel improperly attempted in summation to misuse the specific hearsay opinion of a non-testifying treating doctor essentially as a "tie-breaker." James, supra, 440 N.J. Super. at 77-78. Affirmed. 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