SAMY BOUTROS, ETC. VS. CHRISTOPHER S. COOK (L-1913-16, HUDSON COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-4996-18
SAMY BOUTROS, individually
and as administrator ad
prosequendum of the ESTATE
OF NADIA ASSAD,
Plaintiff-Appellant/
Cross-Respondent,
v.
CHRISTOPHER S. COOK,
KRUSE ASSOCIATES, P.C., and
RICK WAGNER, A/E,
Defendants,
and
SMITH-SONDY ASPHALT
CONSTRUCTION CO., INC.,
NICOLA GENCHI, P.E.,
STRAIGHT EDGE STRIPING,
ROBERT WALSH ASSOCIATES,
LLC, and ROBERT WALSH, P.E.,
Defendants-Respondents/
Cross-Appellants.
_______________________________
Argued January 11, 2021 – Decided August 23, 2021
Before Judges Messano, Suter, and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-1913-16.
Francis X. Dorrity argued the cause for appellant/cross-
respondent (Dorrity Law Office, attorneys; Francis X.
Dorrity and Tracey A. Dorrity, of counsel and on the
briefs).
Richard J. Mirra argued the cause for respondent/cross-
appellants Smith-Sondy Asphalt Construction Co. and
Nicola Genchi, P.E. (Hoagland, Longo, Moran, Dunst
& Doukas, LLP, attorneys; Richard J. Mirra, of counsel
and on the briefs).
William H. Mergner, Jr., argued the cause for
respondent/cross-appellant Straight Edge Striping
(Leary, Bride, Mergner & Bongiovanni, PA, attorneys;
William H. Mergner, Jr., and Catherine McGlone, of
counsel and on the briefs).
Richard E. Snyder argued the cause for
respondent/cross-appellants Robert Walsh Associates,
LLC, and Robert Walsh, P.E. (Braff, Harris, Sukoneck
& Maloof, attorneys; Elliott Abrutyn and Richard E.
Snyder, on the briefs).
PER CURIAM
Nadia Assad was struck and killed by a van driven by her co-worker
Christopher Cook as she walked to her car in the employee parking area of the
Dominick V. Daniels (DVD) Postal Process and Distribution Center in Kearny.
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Individually and as his wife's representative, plaintiff Samy Boutros filed a
negligence action against Cook and other defendants involved in the design, re-
paving, and striping of the recently renovated employee parking area.
Plaintiff settled his claim with Cook, and other defendants were dismissed
before trial proceeded against Robert Walsh Associates, LLC, and Robert E.
Walsh individually (Walsh); Smith-Sondy Asphalt Construction Company and
its engineer, Nicola Genchi; and Straight Edge Striping (Straight Edge)
(collectively, defendants). The judge directed verdicts at the close of plaintiff's
case in favor of all defendants except Walsh. The jury unanimously found
Walsh was not negligent, and the judge denied plaintiff's motion for a new trial
as to all defendants.
On appeal, plaintiff argues he is entitled to a new trial based on erroneous
rulings made by the judge, and because the court's "animosity towards
plaintiff['s] counsel coupled with its erroneous adverse rulings aggregated to
make the trial unfair." Additionally, all defendants filed cross-appeals
challenging evidential rulings by the judge and denial of their pretrial motions
for summary judgment and various in limine motions; Walsh also cross-appeals
from the denial of his motion for a directed verdict at the end of plaintiff's case.
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We have considered the arguments in light of the record and applicable
legal standards. We affirm on plaintiff's appeal and dismiss the cross-appeals
as moot.
I.
"A jury verdict is entitled to considerable deference and 'should not be
overthrown except upon the basis of a carefully reasoned and factually
supported (and articulated) determination, after canvassing the record and
weighing the evidence, that the continued viability of the judgment would
constitute a manifest denial of justice.'" Hayes v. Delamotte, 231 N.J. 373, 385–
86 (2018) (quoting Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506,
521 (2011)). "A trial court therefore grants a motion for a new trial only 'if,
having given due regard to the opportunity of the jury to pass upon the
credibility of the witnesses, it clearly and convincingly appears that there was a
miscarriage of justice under the law.'" Id. at 386 (quoting Crawn v. Campo, 136
N.J. 494, 511–12 (1994) (quoting R. 4:49-1(a))). We apply the same standard
on appeal. Risko, 206 N.J. at 522. However, "when evaluating the decision to
grant or deny a new trial, 'an appellate court must give "due deference" to the
"trial court's feel of the case."'" Hayes, 231 N.J. at 386 (quoting Risko, 206 N.J.
at 522).
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Although an appellate court has a duty to canvass the
record to determine whether a jury verdict was
incorrect, that verdict should be considered
"impregnable unless so distorted and wrong, in the
objective and articulated view of a judge, as to manifest
with utmost certainty a plain miscarriage of justice."
[Kassick v. Milwaukee Elec. Tool Corp., 120 N.J. 130,
135 (1990) (quoting Carrino v. Novotny, 78 N.J. 355,
360 (1979)).]
"That is not to say, however, that we must accept the trial court's legal reasoning:
'[a] trial court's interpretation of the law and the legal consequences that flow
from established facts are not entitled to any special deference.'" Hayes, 231
N.J. at 386–87 (alteration in original) (quoting Manalapan Realty, LP v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
Because plaintiff's new trial motion was predicated on alleged trial errors,
we set forth the standards of review guiding our consideration of th ose issues.
In selecting a jury, a trial court must see to it that the jury chosen is impartial ,
because "[t]he right to a fair and impartial jury is . . . 'fundamental'" to a fair
trial. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 40 (2009) (quoting Wright v.
Bernstein, 23 N.J. 284, 294 (1957)). "We have long relied on our trial court
judges to ensure that the selection of jurors is conducted in a manner that will
effectuate these rights[,]" recognizing when we conduct our review that the trial
judge "is vested with discretion." Id. at 40–41.
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"In reviewing a trial court's evidential ruling, an appellate court is limited
to examining the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J.
6, 12 (2008). A new trial is not warranted unless the trial court's evidentiary
ruling was "so 'wide of the mark' as to constitute 'a manifest denial of justice'
and an abuse of discretion." Id. at 25 (first quoting State v. Wakefield, 190 N.J.
397, 435 (2007)); and then quoting Verdicchio v. Ricca, 179 N.J. 1, 34 (2004)).
We apply a similar discretionary standard of review of the trial court's decisions
regarding the admissibility of expert testimony. See, e.g., Townsend v. Pierre,
221 N.J. 36, 52 (2015) ("The admission or exclusion of expert testimony is
committed to the sound discretion of the trial court." (citing State v. Berry, 140
N.J. 280, 293 (1995)).
With respect to plaintiff's allegations of the trial judge's "animosity"
toward counsel and the judge's overall conduct of the proceedings, we have
made clear that
[a] judge must "conduct [a] trial in a fair and impartial
manner, without making remarks that might prejudice a
party or which are calculated to influence the minds of
the jury." A judge should never unfairly criticize or
humiliate counsel, especially in front of the jury. A
judge's failure to abide by these guidelines "can easily
prejudice a jury since it conveys the opinion of the
judge as to his [or her] belief or disbelief in one side of
the case." Nevertheless, a trial court has wide
discretion in controlling the courtroom and the court
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proceedings. Alleged misconduct by a trial judge must
be reviewed within the context of the entire record in
order to determine whether it had prejudicial impact.
[D.G. ex rel. J.G. v. N. Plainfield Bd. of Educ., 400 N.J.
Super. 1, 25–26 (App. Div. 2008) (alterations in
original) (emphasis added) (citations omitted).]
With these standards in mind, we first review the evidence adduced at trial.
II.
Ms. Assad was walking to her car in the employee parking area at the
DVD shortly before six o'clock on the morning of March 22, 2016, when Cook
struck her with his van. Police responded quickly, and, while she was alive
immediately after being struck, Ms. Assad expired hours later from a fractured
skull.
Cook was arriving at work for the 7:00 a.m. shift; he had worked at the
DVD for 26 years and used the 800-car employee parking area daily. Cook was
looking for an available parking spot, as close to the entrance of the DVD as
possible. He testified that the lighting at the time "wasn't the greatest" and a lot
of people were in the parking lot as shifts were changing. Cook came to the end
of an aisle of parking spaces, referred to as Aisle 4, intending to make a left turn
and proceed to park in the next aisle to the left, Aisle 3. Instead of proceeding
out fully into Aisle A, part of a two-way circulation or collector roadway, and
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then down Aisle 3, without stopping Cook abruptly turned to his left — in
vernacular, "cutting the corner" — and struck Ms. Assad, who was crossing in
front of Cook's van. A security camera captured the accident as it occurred,
and the video recording was played for the jury.
Plaintiff's theory of liability against defendants centered on the design, re-
paving and striping of the employee parking lot that began in 2014; the project
was completed in the area of the accident in late 2015, several months before
the accident. The United States Postal Service (USPS) hired Walsh as the design
engineer for the project, and he prepared a series of plans for Smith-Sondy,
which the USPS hired as general contractor for the project. Smith-Sondy
subcontracted the task of striping the parking lot to Straight Edge.
All defendants moved for summary judgment before trial. A judge, who
was not the trial judge, denied those motions. His oral decision indicated that
for summary judgment purposes he rejected defendants' arguments regarding the
inadequacy of the opinions rendered by plaintiff's experts, or that any failure to
provide certain markings, striping or signage could not have proximately caused
the accident.1
1
The judge entered three orders, one for each defendant. Although denying
Smith-Sondy's motion, the order indicated the judge granted summary judgment
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Louis A. DiGeronimo, an architect, testified as plaintiff's expert in the
safe design of a parking lot. He explained that a DVD employee leaving the
building would first use a striped crosswalk to cross a road used by USPS trucks
and continue down a pedestrian path over a bridge before entering the employee
parking lot. DiGeronimo testified that after leaving the DVD building, Ms.
Assad took this route and then walked across Aisle A before Cook's van struck
her as it made a left turn at the end of Aisle 4. DiGeronimo explained that while
the original parking lot had diagonal parking, accessible from one-way traffic
lanes, the new design by Walsh had perpendicular parking accessible from aisles
with two-way traffic.
DiGeronimo criticized the lack of marked pedestrian crosswalks in the
parking lot "to visually guide the pedestrian and alert . . . the vehicle traffic that
this was a pedestrian area." In addition, he noted that there were no markings
for pedestrians in Aisle A, and the road did not have a center dividing line
indicating two-way traffic.
DiGeronimo concluded that Walsh breached his duty of care because the
design plan "failed to comply with pedestrian safety standards" in the USPS
to Genchi individually, but that he "remain[ed] a defendant in his capacity as a
professional."
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project design guidelines. In addition, Walsh failed to provide adequate
pedestrian safety measures to warn postal employees that a new parking lot
design had "radically changed . . . the preexisting traffic pattern." Finally,
DiGeronimo opined that Walsh failed to inspect the completed work to ensure
his design for striping and road markings in the revised drawings had been fully
implemented.
Michael Scarano testified for plaintiff as an engineering expert.
According to Scarano, when designing the reconstruction of an employee
parking lot with a large amount of foot traffic, a design engineer must consider
the safety of both pedestrians and drivers. In addition, Walsh's contract with the
USPS required that he take all proper precautions to protect the safety of postal
service employees.
Scarano testified that there were no "visual cues," such as a stop sign at
the end of the parking aisle, as he had seen "in similar circumstances on many
other . . . pedestrian crossing[s]" whenever there was a new traffic pattern.
These cues included a clearly delineated pedestrian crosswalk and broken
yellow lines in a collector roadway, such as Aisle A, indicating two-way traffic.
Even though the collector roadway in the employee parking lot at the DVD, i.e.,
the predecessor to Aisle A, always handled two-way traffic, Scarano concluded
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that Walsh's design "greatly increased the risk to pedestrians . . . when
compar[ed . . . to] the prior condition." Probably the most significant change,
according to Scarano, was that
[y]ou [previously] had one-way aisles in the vicinity of
the accident and they were changed to two-way aisles.
Which now doubles the risk of any individual standing
at any location within those aisles. You basically now
have traffic coming from two directions instead of one.
Combined with that, for someone who would
have been used to the parking lot as it was before and
now coming into the parking lot with all these two-way
aisles, this presents a significantly increased risk as a
pedestrian must now face the risk of vehicular traffic
from both directions.
Of course, Cook's van did not strike Ms. Assad in a parking aisle, but rather
before she entered an aisle.
Scarano added the lack of stop signs and lettering, no pedestrian
crosswalks, and no signs indicating there was a new traffic pattern "[we]re all
contrary to sound design engineering principles for a facility" of DVD's size.
Scarano opined that due to the lack of "sufficient arrows and traffic directory
signage, the risk of error and confusion [wa]s significantly increased"
everywhere in the lot.
Lee D. Klein testified for plaintiff as an expert in traffic engineering. Prior
to reconstruction, the parking lot had angled parking spaces and one-way drive
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aisles with directional arrows; any two-way traffic was noted by a yellow center
line. With the new design, once a pedestrian entered the main parking area and
aisles, there was no identified path, and no pedestrian crosswalk in the area
where the accident occurred. There was no marking on Aisle A indicating two-
way traffic. In Klein's opinion, due to the volume of traffic and the angle of
intersection between the aisles and the circulation road, "it would be
recommended to provide visual cues for a driver . . . to direct them to stay to the
right of the double yellow line" in Aisle A. He added that "[n]ot only do
crosswalks provide visual cues for . . . pedestrians, but [they] also provide[]
visual cues for . . . driver[s] to realize that this is a place where pedestrians could
be cross[ing.]"
According to Klein, the three basic failures of the parking lot design were
the lack of pedestrian crosswalk striping, the lack of center yellow striping , and
a lack of two-way directional arrows. This created an unsafe and hazardous
condition in the parking lot due to a lack of visual cues for both drivers and
pedestrians.
Plaintiff's evidence included other witnesses, as well as short deposition
readings from Walsh, Barry Huston, Smith-Sondy's manager for the DVD
repaving project, and Andrew Altobelli, the owner of Straight Edge. As noted,
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the judge granted motions for directed verdicts as to the latter two defendants;
he denied a motion made by Walsh.
Huston testified live as a defense witness. He described changes that were
made to some of the initial plans drawn by Walsh during conferences with the
general manager of the DVD. Huston documented some of these in his work
logs.
Walsh testified that he had designed hundreds of parking lots in his thirty-
five-year professional career. He submitted a proposed design for the
reconstruction of the DVD lot in December 2014 with perpendicular parking on
both sides of two-way traffic aisles. The plan's notes reflected that "final
proposed striping layout shall be approved by [the USPS] prior to proceeding
with the work." The USPS finally approved the final striping plan in August
2015, and that was reflected on a revised site plan Walsh identified at trial.
Walsh said the traffic aisles contained stop bars painted on the ground
rather than stop signs because the entire lot was paved and had no landscaping
on a raised island where a sign could have been erected. Paving the entire lot
was done to make snow removal easier, and the USPS design criteria did not
require stop signs, crosswalks or center lines in traffic aisles. As a result of the
project meetings and feedback, Walsh revised his drawings again. The
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circulation roadway, which included Aisle A, was made wider for easier turning
as vehicles exited the parking aisles. All striping was completed by the end of
September 2015.
James Peter Quinn, a professional engineer, testified as an expert for
Walsh. He opined that the repaved, restriped lot was safer than the previous
parking lot. Quinn also testified that design standards did not require a marked
crosswalk for pedestrians, or a painted center line in the circulating roadway or
parking aisles, nor was there any need for additional signage.
The jury returned a unanimous no cause verdict after deliberating for
approximately three hours, some of which was consumed by arranging for the
jurors to view again the surveillance video footage.
III.
We address the alleged trial errors that plaintiff claims "clearly and
convincingly" demonstrate the directed verdicts and the jury's no cause verdict
as to Walsh were "miscarriage[s] of justice under the law." R. 4:49-1(a).
Jury Voir Dire
In his preliminary instructions to the jury venire, the judge explained how
plaintiff had settled his claim against Cook, who was no longer a defendant at
trial. Twice, he told prospective jurors, "plaintiff claimed that . . . Cook was the
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cause of the accident." (emphasis added). There was no objection from
plaintiff's counsel. The next day, when a new venire panel arrived, the judge
more appropriately said, "plaintiff claimed . . . Cook was one of the causes of
the accident but before the trial, Mr. Cook settled with the plaintiff." (emphasis
added). It does not appear that plaintiff raised this as an issue when he moved
for a new trial, but, in any event, he now claims the judge implied that only
Cook, and not the remaining defendants, could be liable. The argument lacks
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Over defendants' objection, the judge agreed to permit the admission of
two autopsy photos at trial, even though the cause of Ms. Assad's death was not
disputed. Over plaintiff's objection, the judge said he would show them to
prospective jurors to "make sure, based upon their review, they still can be fair
and reasonable and unbiased and make a decision without sympathy, passion, or
prejudice." He then told the panel:
As part of this trial, we're going to show you some not
very pleasant photographs. . . . For lack of a better
description. They are not pleasant. We're going to
show you photographs and we are going to ask you
point-blank whether you can decide this case based
upon the facts and the evidence and put aside any
sympathy you may have for the plaintiff that you
develop as a result of seeing these pictures. That's why
we ask you that question.
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When I call you up and show you the pictures,
that's what I will ask you. I will say: Can you judge
this case fairly and impartially without sympathy in
light of these pictures?
As he did when he moved for a new trial, plaintiff claims this implied he
intended to play to jurors' sympathy. In denying the new trial motion, the judge
noted it was plaintiff who sought to admit the photos, and the procedure he used
was effective, because he excused some jurors who said they were unable to
judge the case fairly after seeing the autopsy photos. This argument also
requires no further discussion. R. 2:11-3(e)(1)(E).
In Limine Rulings on Plaintiff's Experts
Plaintiff argues the trial court erred, both procedurally and substantively,
by precluding or restricting his experts' testimony. Specifically, he asserts the
judge erred in limiting the experts' ability to testify regarding proximate cause,
and in barring entirely the testimony of William Gulya, the principal of an
excavation and construction firm, who the judge ruled was not qualified to
testify as an expert on any relevant issue. Plaintiff contends these rulings
prevented him from establishing a prima facie negligence case against Smith-
Sondy and Straight Edge.
Prior to the start of trial, defendants filed in limine motions challenging
the admissibility of all plaintiff's experts' opinions as net opinions. The judge
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partially granted the motions as to DiGeronimo, Scarano and Klein, ruling only
that they could not testify as to proximate cause regarding the actual accident.
He explained:
They can't offer an opinion that they would have
followed the line or would have followed the crosswalk
. . . . It's not within the purview of their expertise.
However, they can give an opinion about why parking
. . . lots are stripped [sic]. . . .
The same thing with the crosswalk. . . . [Y]ou
can't say for certain that every individual who walks
across the street is going to stay within the parameters
of those four lines, the rectangle, the crosses. However,
you can say this is a general guide to the public as to
where they should cross safely. And it's also notice to
the driver . . . [to] be wary of pedestrians walking in
that crosswalk. So they can't say the person wouldn't
have made the turn or they can't say the person would
have used the crosswalk. But they can say the basic
function of stripping [sic] is to try to mold or guide
people to operate safely and walk safely through
parking lots and that the guidance wasn't there and as
the result of a lack of guidance, the person wasn't
guided to drive carefully or wasn’t guided to cross the
street carefully. . . . So that's the limit of their
proximate cause. So Klein, Scarano, DiGeronimo may
all testify within these parameters.
The issue arose again briefly during trial, when the judge ruled that
DiGeronimo could not testify as to causation, noting the expert said in his
deposition that causation was not within the scope of his opinion. The judge
again explained, "[A]ll the experts . . . c[an] testify as to why, based upon
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engineering principles, stripes are put on the ground. That's their job. But they
can't say what Mr. Cook's behavior would or would not have been had the stripes
been there."
The judge also granted defendants' in limine motion as to Gulya,
concluding he was not qualified to testify as an expert because he lacked any
special knowledge, education, skill, experience, or
training. He is not an architect. He is not an engineer.
His expert[ise] [sic] appears to be related to
construction sites and construction projects, be it
OSHA2 compliance or performance of the contract as
per the plans, but he is involved with construction sites.
This is not a construction site. . . . Construction wasn't
[sic] done. The theory of liability is the stripping [sic]
or lack of stripping [sic] and he has no expertise in that
area.
We don't need . . . his expertise to testify that the
plans had an arrow and the arrow wasn't drawn. It's not
needed. His special knowledge or skill doesn't assist
the jury in their fact-finding duties, so I am striking him
as an expert for that reason.
Plaintiff renewed his request for Gulya to testify during trial, citing the
prejudice occasioned "by the absence of . . . testimony from a . . . contracting
expert." Specifically, at that point, plaintiff wanted Gulya to testify regarding
2
Occupational Safety And Health Act, 29 U.S.C. §§ 651 to 678.
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the contractor defendants' failure to photograph the preexisting condition of the
parking lot.3 The judge denied the request.
Plaintiff cited the exclusion of Gulya as a witness when he moved for a
new trial. The judge noted that Gulya's opinions were based primarily on OSHA
standards, "which w[ere] in no way applicable to the case, because the accident
did not occur on a construction site. Gulya was not an accident reconstruction
expert, nor was he a human factors expert or engineer." In denying plaintiff's
motion for a new trial, as to plaintiff's other experts, the judge wrote that their
testimony
only established that the [d]efendant "stripers" (Smith-
Sondy and Straight Edge Striping) failed to paint
arrows on the new asphalt at a location [that was] in no
way related to the occurrence of . . . Cook's car striking
[p]laintiff.4 There was no miscarriage of justice. The
3
Plaintiff sought to imply that defendants failed to follow Walsh's plans, which
indicated in notes that the existing striping should be photographed and, unless
modified by the USPS, the repaved lot should be similarly striped. Prior to the
repaving project, the lot had a center line denoting two-way traffic in the
circulating road, including Aisle A. However, as defendants repeatedly pointed
out, the note made little sense because the original plan from Walsh retained the
"herringbone" parking pattern in one-way parking aisles; the new plan adopted
two-way traffic parking aisles with perpendicular parking spots. Thus, a pre -
repaving photograph showing the then-existing striping would have been
irrelevant.
4
This was a reference to plaintiff's claim that directional arrows in Aisle A
demonstrating two-way traffic were supposed to be painted according to Walsh's
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[d]efendant "stripers" were contractually obligated to
paint lines and arrows on new asphalt per the plans
prepared by [Walsh]. Subsequent to completion of
their contractual obligation to "paint," they had no duty
to abate hazardous conditions allegedly created by a
design deficiency in the plans.
Plaintiff initially argues that the trial judge erred in excluding and limiting
the expert testimony by way of an in limine motion after the motion judge had
earlier denied defendants' summary judgment motions on similar grounds.
However, "an order denying summary judgment is not subject to the law of the
case doctrine because it decides nothing and merely reserves issues for future
disposition." Gonzalez v. Ideal Tile Importing Co., 371 N.J. Super. 349, 356
(App. Div. 2004), aff'd on other grounds, 184 N.J. 415 (2005); see Blunt v.
Klapproth, 309 N.J. Super. 493, 504 (App. Div. 1998) ("Denial of summary
judgment preserves rather than resolves issues; therefore, later reconsideration
of matters implicated in the motion, including the reasons in support of the
denial, are not precluded." (citing A & P Sheet Metal Co. v. Edward Hansen,
Inc., 140 N.J. Super. 566, 573–74 (Law Div. 1976))).
plans, but were not. However, in granting a directed verdict as to Smith-Sondy
and Straight Edge, the judge noted that the area where the arrows were to be
painted according to Walsh's plans was some distance away from where the
accident occurred. In other words, the absence of arrows could not have been a
proximate cause of the accident.
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While plaintiff correctly notes that courts generally disfavor in limine
rulings on evidence questions, particularly where the motion seeks the exclusion
of expert testimony, a trial judge retains the discretion, in appropriate cases, to
rule on the admissibility of evidence pretrial. Seoung Ouk Cho v. Trinitas Reg'l
Med. Ctr., 443 N.J. Super. 461, 470–71 (App. Div. 2015). In Cho, we concluded
that the grant of the defendant's in limine motion brought the day before jury
selection was the equivalent of an untimely summary judgment motion. Id. at
471–72. Here, however, except for Gulya, the trial judge did not exclude
plaintiff's experts from testifying. He limited their opinions on proximate cause
as to the happening of this accident.5
Before turning to the merits of the judge's decision to limit the expert
testimony, at the hearing on the in limine motion, the judge observed that
"plaintiff has offered no substantive opposition to the motions in limine relative
5
To the extent plaintiff contends the judge should have conducted a Rule 104
hearing before ruling on the in limine motions, we note plaintiff never requested
such a hearing. We need not consider the argument. Nieder v. Royal Indem.
Ins. Co., 62 N.J. 229, 234 (1973). In any event, plaintiff's experts were all
subject to deposition and the trial judge had all the available discovery, thereby
obviating the need for a hearing. See Fairfax Fin. Holdings Ltd. v. S.A.C. Cap.
Mgmt., LLC, 450 N.J. Super. 1, 100 n.50 (App. Div. 2017) (finding no error in
the failure to conduct a Rule 104 hearing because the expert was examined at a
deposition and that deposition testimony was available to and considered by the
trial court at the time of its ruling).
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to the experts and would procedurally argue that these motions are dispositive
and therefore bought as late summary judgment motions. That's it right?"
Plaintiff's counsel answered affirmatively. In other words, plaintiff only
opposed consideration of defendants' motion by arguing that Cho precluded
consideration. He did not argue the merits of defendants' request.
Turning to the substance of plaintiff's arguments, "[t]he issue of causation
is ordinarily left to the factfinder." Townsend, 221 N.J. at 59 (citing Fleuhr v.
City of Cape May, 159 N.J. 532, 543 (1999)). Undoubtedly, there may be
instances where the issue of proximate cause is complex and requires special
expertise. In such circumstances, expert testimony is not only helpful for the
jury but also required. See, e.g., Quail v. Shop-Rite Supermarkets, Inc., 455
N.J. Super. 118, 135 (App. Div. 2018) (explaining that expert testimony was
necessary to explain "the chain of proximate cause" between an accident in the
defendant's store and the plaintiff's wife's death five days later). This was not
such a case. The judge permitted the testifying experts to explain fully why the
lot design and its absence of markings made for an unsafe condition; the only
thing he forbade was allowing plaintiff's experts to say those conditions
proximately caused this particular accident.
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Plaintiff was not at all prejudiced by that limitation. The jury saw a video
recording of the accident and could easily relate its occurrence to the alleged
breaches in design. The expert testimony that was admitted at trial using the
plans as exhibits implicitly established plaintiff's claim, and the jury did not
need an expert to explain it. Moreover, plaintiff's inability to prove a prima
facie case against Smith-Sondy and Straight Edge had nothing to do with the
limit the judge placed on the experts' testimony.
That leaves consideration of the judge's decision to exclude Gulya's
testimony. To the extent the judge concluded Gulya lacked the requisite
expertise, we disagree. Although he may have lacked professional training,
Gulya's years of experience qualified him to opine about appropriate procedures
at construction sites and the duties of general and subcontractors. See N.J.R.E.
702 (noting expert may be qualified based on "experience"). However, we agree
the exclusion of Gulya as a witness was appropriate for another reason. See
Hayes, 231 N.J. at 387 (noting "it is well-settled that appeals are taken from
orders and judgments and not from opinions, oral decisions, informal written
decisions, or reasons given for the ultimate conclusion." (quoting Do-Wop Corp.
v. City of Rahway, 168 N.J. 191, 199 (2001))).
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23
Gulya's was president of a trenching company that did excavation and
construction site preparation. In his report, Gulya stated that Smith-Sondy failed
to install "temporary warning signage such as slow[,] construction ahead" near
the area "where the work was incomplete." Gulya concluded in his report that
Smith-Sondy had "adequate and available resources to remedy and abate the
hazardous safety conditions that were obvious prior to and on the day of the . . .
accident." The absence of striping created a "clearly recognizable known
dangerous condition to exist." He opined that Straight Edge failed to install
directional arrows in Aisle A, as indicated on Walsh's plans, and that Smith-
Sondy failed to inspect the striping for conformance with the design plan.
In main support of these conclusions, Gulya's report cited the OSHA
regulations and manual that dealt with rules at construction sites. He cited
contractual provisions between the USPS and Smith-Sondy that imposed safety
at the worksite on the general contractor and sub-contractors. However, as the
judge noted, the portion of the parking lot where the accident occurred was
completed months earlier. There was no ongoing construction.
Moreover, Gulya's opinions largely criticized the same design flaws that
plaintiff's other experts addressed. During his deposition, for example, Gulya
cited the lack of striped pedestrian walkways, "one-way signs," and double
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24
yellow lines for two-way traffic as violations of industry safety standards. There
was no underlying support for Gulya's claim that the contractors nevertheless
had independent duties to correct any unsafe condition after the work was
complete. While we disagree with the trial judge's rationale in barring Gulya
from testifying, we affirm his decision.
Most importantly, the absence of Gulya's testimony did not prejudice
plaintiff because even had Gulya testified in accordance with his report, the
judge would have still properly granted directed verdicts in favor of Smith-
Sondy and Straight Edge. At his deposition, Gulya's main criticism of the two
contractors was their failure to paint directional arrows in Aisle A as indicated
by Walsh's plan. The absence of directional arrows in Aisle A as shown on the
plans could not have been a proximate cause of this accident. The trial judge's
order barring Gulya as a witness did not lead to an unjust result. R. 2:10-2.
Other Trial Rulings
It is not clear that plaintiff raised these issues in support of his new trial
motion, but we address them, nonetheless.
Defense counsel objected when plaintiff's counsel asked a police witness
if he had observed pavement markings in another lot at the DVD used
exclusively by the USPS trucks. The judge sustained the objection, although he
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25
permitted counsel to have the officer explain the path Ms. Assad traveled
through the truck lot to reach the employee parking lot.
Plaintiff argues this was reversible error, because there was a marked
pedestrian crosswalk in the truck lot, but not in the employee lot, thereby
demonstrating a design flaw. We disagree. The sole issue was the condition of
the employee parking lot where the accident occurred. More importantly,
plaintiff's experts repeatedly opined that the employee lot should have had a
marked pedestrian walkway, and during his testimony, Walsh acknowledged
that the striping in the truck lot preexisted the repaving of the employee lot and
was necessary because employees at that point traversed tractor-trailer traffic.
In other words, the jury was fully aware that the truck lot had a striped pedestrian
walkway and the employee lot did not.
Plaintiff contends the judge prejudicially limited his attorney's use of
leading questions during Cook's direct examination. Plaintiff does not dispute
that the questions were grossly leading, but rather he relies on N.J.R.E. 611(c),
which provides:
Leading questions should not be used on direct
examination except as necessary to develop the witness'
testimony. Ordinarily, leading questions should be
permitted on cross-examination. When a party calls an
adverse party or a witness identified with an adverse
party, or when a witness demonstrates hostility or
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26
unresponsiveness, interrogation may be by leading
questions, subject to the discretion of the court.
According to plaintiff, even though he settled with Cook before trial, the leading
questions were appropriate because Cook was "an adverse party."
"'[C]ontrol[ling] and manag[ing] the introduction of testimony' i s within
the discretion of the trial court, and '[its] decision . . . [is] conclusive unless
clearly erroneous as a matter of law.'" Capparelli v. Lopatin, 459 N.J. Super.
584, 609–10 (App. Div. 2019) (alterations in original) (first quoting Hall v. St.
Joseph's Hosp., 343 N.J. Super. 88, 107 (App. Div. 2001); and then quoting
Bosze v. Metro. Life Ins. Co., 1 N.J. 5, 10 (1948)). We need not get into the
technicalities of the evidence rule. The reality of the situation was that Cook
did not display any adversity during his testimony, and, while he could not recall
many things, he never demonstrated "hostility or unresponsiveness." N.J.R.E.
611(c).
Plaintiff also fails to assert how he was prejudiced by any limitation
imposed by the judge. In fact, Cook described the very poor lighting in the
parking lot, the significant number of pedestrians exiting the DVD and entering
the parking lot, and that complaints about the situation had been brought to the
USPS's attention.
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27
Use of the Surveillance Video
Plaintiff argues that he is entitled to a new trial because the judge abused
his discretion by not permitting him to play the surveillance video during direct
examination of his experts. We disagree.
The issue first arose during DiGeronimo's direct testimony, when plaintiff
sought to play the video and have DiGeronimo comment on it. Defendants
objected, and the judge ruled that because DiGeronimo said at his deposition
that the video "played no role in the function he performed as an expert
reviewing the design plans of the parking lot," he could not refer to it in front of
the jury. The judge added: "[H]e didn't use the video in his analysis and ultimate
opinion. That's what he's saying. He's saying the plans are bad . . . . He's saying
the video didn't help me form my opinion that the plans were bad." Plaintiff
also sought to ask Klein about the video, but the court sustained defendants'
objection because Klein also said at his deposition that he did not rely on the
video in formulating his opinion.
In denying plaintiff's motion for a new trial as to testimony regarding the
video, the judge reiterated that he correctly precluded plaintiff's experts from
reviewing it before the jury because they did not reference it in their reports.
The judge noted that "DiGeronimo even testified that his responsibility was not
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28
to review the video of the accident. Rather . . . to[] 'look at the design . . . as to
whether [the expert] performed in accordance with the standard of care.'"
N.J.R.E. 703 provides: "The facts or data in the particular case upon
which an expert bases an opinion or inference may be those perceived by or
made known to the expert at or before the proceeding." The rule
mandates that expert opinion be grounded in "facts or
data derived from (1) the expert's personal
observations, or (2) evidence admitted at the trial, or (3)
data relied upon by the expert which is not necessarily
admissible in evidence but which is the type of data
normally relied upon by experts."
[Townsend, 221 N.J. at 53 (emphasis added) (quoting
Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)).]
As a result, "authorization for an expert to base his opinion on what he learns at
trial can sometimes excuse his failure to submit a report in advance thereof, and
may likewise justify permitting him to testify beyond the four corners of his
report[,] if he has submitted one." Biunno, Weissbard & Zegas, Current N.J.
Rules of Evidence, cmt. 6 on N.J.R.E. 703 (2021) (first citing State v. Labrutto,
114 N.J. 187, 205–06 (1989); and then citing Amaru v. Stratton, 209 N.J. Super.
1, 11–12 (App. Div. 1985)). Writing for our court in Amaru, Judge Michels
stated the proposition succinctly: "that an expert's testimony exceeds the scope
of written reports requested in discovery does not automatically bar that
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29
testimony from trial." 209 N.J. Super. 1, 12 (App. Div. 1985). Whether
testimony exceeding the scope of an expert's report should be admitted at trial
is left to the sound discretion of the trial court. Conrad v. Robbi, 341 N.J. Super.
424, 441 (App. Div. 2001) (citing Ratner v. Gen. Motors Corp., 241 N.J. Super.
197, 202 (App. Div. 1990)); Nicholl v. Reagan, 208 N.J. Super. 644, 652 (App.
Div. 1986).
Plaintiff does not dispute that the experts never reviewed the video in
preparing their reports; however, the video was in evidence at trial, and we see
no prohibition in allowing an expert witness to view it simply because it was not
cited in a report furnished in discovery or referenced during deposition. The
issue, however, is whether the experts would have offered proper testimony
while the video played. Pursuant to N.J.R.E. 702, "[e]xpert testimony is not
necessary to tell the jury the 'obvious' or to resolve issues that the jury can figure
out on its own." State v. Simms, 224 N.J. 393, 403 (2016) (quoting State v.
Nesbitt, 185 N.J. 504, 514 (2006)). "In other words, '[e]xpert testimony should
be limited to areas that are beyond the understanding of the jury.'" Ibid.(alteration in original) (quoting State v. Sowell, 213 N.J. 89, 102 (2013)).
There was no dispute as to how the accident occurred in this case. If
plaintiff intended to have the experts explain what was obvious from the video,
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30
the testimony would have been improper. More importantly, the experts fully
explained their opinions for the jury, using Walsh's plans to demonstrate where
the shortcomings were and where the accident occurred. The jury saw the video,
and it could readily relate what was shown there to the experts' opinions. Even
if the judge mistakenly exercised his discretion in prohibiting any questioning
of the experts regarding the video, that error was harmless and was not a basis
for a new trial.
The Jury Charge
At the charge conference, Walsh objected to the judge charging the jury it
could determine the requisite standard of care based on its common knowledge
and experience. See Model Jury Charge (Civil) 5.52(C), "Professional Liability
of an Architect/Engineer, Common Knowledge May Furnish Standard of Care"
(approved Nov. 1995). Plaintiff objected, claiming it was common knowledge
that a pedestrian walkway should be marked. The judge rejected that view:
"[S]triping on parking lots is not common knowledge to common lay-people.
So, they don't know whether or not a standard has been violated." The judge
charged the jury in accordance with subsection B of the model charge which
discusses the need for expert testimony to prove the appropriate standard of care.
In denying plaintiff's new trial motion as to the jury charge, the judge wrote:
A-4996-18
31
Jury Charge 5.52[B] has been used in actions for
personal injury against architects or engineers. There
was a charge conference prior to jury instructions
where [p]laintiff was put on notice [that] this charge
would be given. There was no objection by [p]laintiff.
The charge was appropriate under the facts of the case.
Plaintiff argues that his motion for a new trial should have been granted
because the court erred by not charging the jury that the standard of care for
professional liability could be established by the jurors' own common
knowledge. We disagree.
"In the exceptionally rare cases in which the common knowledge
exception applies, . . . an expert is not needed to demonstrate that a defendant
professional breached some duty of care 'where the carelessness of the defendant
is readily apparent to anyone of average intelligence.'" Cowley v. Virtua Health
Sys., 242 N.J. 1, 17 (2020) (quoting Rosenberg v. Cahill, 99 N.J. 318, 325
(1985)). The Model Charge anticipates that, in certain cases, it may be
appropriate to charge the jury with both subsection B and C. The accompanying
note to the judge states:
Where there has been expert architectural
testimony as to the standard of care but the standard is
one which can also be determined by the jury from its
common knowledge and experience, the jury should
determine the standard of care after considering all the
evidence in the case, including the expert architectural
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32
testimony, as well as its own common knowledge and
experience.
[Model Jury Charges (Civil), 5.52, "Professional
Liability of an Architect/Engineer" (approved Nov.
1995).]
In this case, the issue involved whether a pedestrian crosswalk should have been
clearly delineated in an employee parking lot with more than 800 parking spaces
and multiple parking aisles. If such a crosswalk should have been delineated,
where it should have been located, and whether more than one was necessary
were issues beyond the ken of an average juror. Perhaps, as the judge noted,
most jurors would understand through their collective common knowledge the
need for crosswalks on busy streets they walked every day, but whether that was
required under professional standards of care at the DVD employee parking lot
was not.
Culture of Animosity
In addition to these specific allegations of error by the judge, plaintiff's
overarching claim is that the judge displayed such animosity to his attorney that
the trial was manifestly unfair and a new one is warranted. Plaintiff does not
appear to have raised this issue as a basis for his new trial motion; however, as
noted below, plaintiff did seek a mistrial on this issue. We address the issue
applying an abuse of discretion standard. D.G., 400 N.J. Super. at 25.
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33
The trial record patently reveals the highly contentious nature of the
proceedings. The judge, now retired, did a commendable job maintaining the
order and dignity of the courtroom, but only by frequently cautioning counsel,
who posed numerous objections, frequently and sarcastically spoke over each
other, interrupted the judge and were constantly at sidebar.6 We provide some
limited examples.
During the direct examination of a police officer, one of the earliest
witnesses, a defense counsel asked at sidebar to see a copy of the officer's report
before it was shown to the witness. The following colloquy then took place:
Plaintiff's counsel: Your Honor, this is bizarre.
Everybody has these.
Defense counsel: I don't care.
Plaintiff's counsel: You be quiet for a moment.
Defense counsel: Excuse me, you're not my father
when you tell me what to do.
Plaintiff's counsel: Well, you need a father.
Defense counsel: I have a father.
Plaintiff's counsel: Then you need another one.
6
The contentious nature of the proceedings predated the trial. The deposition
transcripts in the record are marred by frequent and improper objections.
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34
The judge told the attorneys to "stop," and instructed plaintiff's counsel to show
the report to his adversary. After the sidebar ended, plaintiff's counsel told the
police officer that he had been requested to show the report to his opponent.
Defense counsel interjected that it was a court rule, not a request. The judge
then excused the jury and told the attorneys that their actions had required him
to be a "babysitter." After the jury returned, another sidebar took place, where
a different defense attorney accused plaintiff's counsel of placing photographs
of the accident scene on a table where the jury could see them. The court
excused the jury for the day, and told the attorneys:
I'm not going to do this for two weeks. . . . All
right? For the record, counsel, you pulled the
photographs out and you put them at a [forty-five]-
degree angle which is very viewable to the jury. . . .
Maybe you didn't do it on purpose. Maybe you did. I
don't know. . . . But the bottom line is this . . . . If this
culture of animosity continues, I don't believe justice is
going to be done. . . . So please, if the four of you can
get together and work out your differences without the
jury being involved and witnessing it, I think you're all
going to be better off.
During subsequent proceedings, the court told counsel, outside the
presence of the jury, that the jury had complained about the temperature in the
courtroom and the number of sidebars. As to the latter, outside the jury's
hearing, the judge said:
A-4996-18
35
Can we please stop going over to that sidebar? They
really can't stand it. . . . [W]e stand over there forever
and they're sitting over there freezing.
I can't help with that one either, can I? But these
are eight individuals you have chosen to resolve your
dispute you're all having over this case and I suggest
collectively you do what you can [t]o accommodate
their concerns in order for justice to prevail.
During a colloquy outside the jury's presence regarding a diagram he
intended to introduce, plaintiff's attorney commented that the court "made" him
show the exhibit to the defense, to which the judge replied: "Don't . . . put this
on me. . . . [T]he fact that you didn't do what you're supposed to do is not my
fault." Plaintiff's counsel responded, "I'm tired of being blamed by the [c]ourt
and I think it's inappropriate." The record indicates that the court responded,
"You (indiscernible)," and the judge then exited the courtroom.
After trial resumed, and again outside the presence of the jury, plaintiff
asked for a mistrial based on the court "berating me in front of my clients on
two separate occasions." The judge denied the motion, stating he had not
berated counsel and the jury had not been present. Plaintiff's attorney stated that
the court should have admonished him in chambers rather than before his clients,
and he did "not wish to continue this case before [the judge]." The judge again
denied a motion for a mistrial.
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36
After ruling plaintiff could not use the video during the testimony of his
experts, the court sustained a defense objection during redirect of Scarano when
plaintiff's counsel sought to reference the video. The judge then instructed the
jury that Scarano's testimony was limited to what was in his report, and "[w]hat
counsel attempts to do is ask questions outside the report, thus causin g the
objections. Okay? That's what this . . . two days of consternation is all about."
On the following trial date, during plaintiff's redirect of Klein, the judge
again sustained an objection when plaintiff's attorney attempted to ask Klein a
question about the video. When counsel requested a sidebar, the judge replied,
"No, absolutely not. Continue your examination of your witness."
During defendants' motion for judgment at the close of plaintiff's case, the
judge accused plaintiff's attorney of avoiding answering his questions, adding:
Just like, for example . . . we told you at sidebar not to
use the death certificate and you tried anyway, and then
you put it down to give the jury the implication that the
judge and defense counsel are just beating poor little
you up, okay. So I think I'm asking very pertinent
questions and you're deliberately not answering them
because that's your style.
Plaintiff also points to the judge granting Walsh's objections during plaintiff's
summation about claims that his comments were a mischaracterization of the
evidence.
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37
In Persley v. N.J. Transit Bus Operations, we held that the court did not
abuse its discretion in addressing a "recurring problem" that arose from attempts
by the plaintiff's attorney, during cross-examination of expert witnesses, to read
favorable portions of the reports of the plaintiff's experts "under the guise of
posing questions," after the witnesses stated that they had reviewed those reports
and that "it did not change their opinions." 357 N.J. Super. 1, 10 (App. Div.
2003). The court admonished the plaintiff's attorney at sidebar conferences to
refrain from this practice, and when he persisted, the court admonished him in
the presence of the jury. Ibid. In addition, the judge admonished the plaintiff's
attorney in the jury's presence for asking repetitive questions and questions
regarding matters not in dispute. Ibid.We held that in the overall context of the lengthy trial, none of these
incidents, individually or collectively, deprived the plaintiff of a fair trial. Ibid.We did "not detect in the judge's demeanor any pervasive criticism of plaintiff's
counsel or undermining of plaintiff's case." Id. at 11.
Here, except for the objections during summation, the rulings on which
were not accompanied by any comments by the judge, and the denial of a request
for a side bar, the only exchange plaintiff points to that took place in front of the
jury was the court's statement that plaintiff's attorney attempt to ask question s
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38
outside the expert's report caused objections resulting in "two days of
consternation." While this would have been better left unsaid, it was no worse
than the admonishments of the attorney that took place in front of the jury in
Persley. Cf. Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 299–313 (App.
Div. 1999) (reversing where the trial judge imposed a ban on sidebar
conferences and chastised the attorney at length in front of the jury, including a
reference to the attorney's violation of the Rules of Evidence).
Viewing the trial in its entirety, we cannot conclude the judge's demeanor,
comments, or rulings demonstrated prejudice toward plaintiff or his counsel
resulting in a miscarriage of justice.
Affirmed. As a result, we dismiss the cross-appeals as moot.
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