GERALD ORRICO VS. PORT AUTHORITY TRANS-HUDSON CORPORATION (L-5389-13, HUDSON COUNTY AND STATEWIDE) ( 2018 )


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  •                         NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
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    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-2380-15T1
    GERALD ORRICO,
    Plaintiff-Appellant,
    v.
    PORT AUTHORITY TRANS-
    HUDSON CORPORATION,
    Defendant-Respondent.
    _____________________________
    Argued March 20, 2018 – Decided August 30, 2018
    Before Judges Fasciale, Sumners and Moynihan.
    On appeal from Superior Court of New Jersey,
    Law Division, Hudson County, Docket No.   L-
    5389-13.
    Jaclyn A. Gannon argued the cause for
    appellant (Cerussi & Gunn, PC, attorneys;
    Charles A. Cerussi, of counsel and on the
    brief).
    Thomas R.       Brophy argued the cause for
    respondent     (Port Authority Law Department,
    attorneys;     Thomas R. Brophy and Lauren T.
    Grodentzik,    of counsel and on the brief).
    PER CURIAM
    Plaintiff Gerald Orrico sued his employer, the Port Authority
    Trans-Hudson Corporation (PATH), under the Federal Employer's
    Liability Act (FELA), 
    45 U.S.C. §§ 51
     to 60, for premises liability
    for a knee injury he sustained when he tripped and fell while
    walking along railroad tracks.   The jury found that PATH was not
    negligent, and the trial judge denied Orrico's motion for a new
    trial.   Orrico argues the trial judge erred in denying his motion
    for a new trial in which he contended the judge made incorrect
    evidentiary rulings and gave misleading jury instructions, and
    that PATH counsel made prejudicial summation remarks.       We affirm
    in part, reverse in part, and remand for a new trial.
    I
    A FELA action brought in state court is governed by federal
    law on both liability and damages.    Donovan v. Port Auth. Trans-
    Hudson Corp., 
    309 N.J. Super. 340
    , 348 (App. Div. 1998). Plaintiff
    alleges defendant violated FELA by negligently failing to provide
    him with a reasonably safe workplace.    See 
    45 U.S.C. § 51
    .      FELA
    provides in pertinent part:
    Every common carrier by railroad . . . shall
    be liable in damages to any person suffering
    injury while he is employed by such carrier
    in such commerce . . . for such injury or
    death resulting in whole or in part from the
    negligence of any of the officers, agents, or
    employees of such carrier, or by reason of any
    defect   or   insufficiency,    due   to   its
    negligence, in its . . . works.
    [Ibid.]
    2                            A-2380-15T1
    We begin with a brief synopsis of the evidence concerning the
    alleged accident.      Orrico, a PATH railroad switchman/engineer, was
    walking along the Harrison Yards railroad tracks, which is secured
    by a perimeter fence, when he stepped in a hole in the ballast –
    the stones that surround and hold the railroad cross ties in place.
    John     Venditolli,     a    PATH      operations       examiner      with    the
    responsibility to investigate accidents at the Harrison Yards and
    determine if they were caused by unsafe conditions, testified on
    Orrico's behalf.       He stated he saw two holes – which were "hard
    to notice due to sun glare and they blended in with the rest of
    the ballast" – five minutes after the accident.                Although he was
    unaware how the holes were created, he remarked that it "looked
    like someone took a shovel worth of ballast stone and, you know,
    dug    in,   dumped   it,"   possibly    to   get   to   air   lines    that   are
    underneath the ballast.         He filled in the holes by kicking the
    ballast with his foot.       Another witness for Orrico, Jasmine Hosni,
    a PATH Operations Examiner, testified that uneven surfaces are
    regularly encountered by PATH workers and that the hole should
    have been taken care of.
    Testifying on behalf of PATH, John Wargo, Chief Maintenance
    Supervisor of PATH's track department, who oversees maintenance,
    repair and inspection of ballast, stated he had seen similar
    ballast holes on the tracks, which were not dug by a person because
    3                                 A-2380-15T1
    he was unaware of any maintenance or inspection that required
    removal of the ballast with a shovel.       He remarked such holes
    "could be caused simply by somebody just walking through the
    ballast if it's [a] soft ballast or it could be caused by equipment
    running through the area."    He further stated that while a large
    section of the track is inspected daily, the entire track is
    inspected monthly.
    II
    Orrico appeals the denial of his motion for a new trial
    claiming that: (1) the judge erred in denying the admission of
    evidence; (2) the judge erred in giving jury instructions regarding
    notice of the unsafe condition and not instructing the jury
    regarding   respondeat    superior;   (3)   defense   counsel   made
    prejudicial remarks in his closing argument; and (4) the verdict
    was against the weight of the evidence.
    We begin by noting that federal law governs a FELA action,
    including a determination of whether a verdict is contrary to the
    weight of the evidence.   Kapsis v. Port Auth. of N.Y. & N.J., 
    313 N.J. Super. 395
    , 402 (App. Div. 1998); see Pressler & Verniero,
    Current N.J. Court Rules, cmt. 1.6 on R. 4:49-1 (2014).         When
    examining the denial of a motion for a new trial under federal
    law, a reviewing court applies the abuse of discretion standard,
    see Springer v. Henry, 
    435 F.3d 268
    , 274 (3d Cir. 2006), and the
    4                          A-2380-15T1
    evidence is viewed in the light most favorable to the party for
    whom the verdict was returned, Wagner v. Firestone Tire & Rubber
    Co., 
    890 F.2d 652
    , 656 (3d Cir. 1989).      A new trial should be
    granted "only where the 'great weight' of the evidence cuts against
    the verdict and 'where a miscarriage of justice would result if
    the verdict were to stand.'"   Springer, 
    435 F.3d at 274
     (quoting
    Sheridan v. E. I. Dupont de Nemours & Co., 
    100 F.3d 1061
    , 1076 (3d
    Cir. 1996) (en banc)).   In order for a motion for a new trial to
    be granted on the grounds the verdict was against the weight of
    the evidence, the record must show that the jury's verdict "cries
    out to be overturned or shocks [the] conscience."     Williamson v.
    CONRAIL, 
    926 F.2d 1344
    , 1353 (3d Cir. 1991).      However, a court
    must not substitute its "judgment of the facts and the credibility
    of the witnesses for that of the jury."   Lind v. Schenley Indus.,
    Inc., 
    278 F.2d 79
    , 90 (3d Cir. 1960) (en banc).
    Guided by these principles, we conclude the jury verdict was
    a miscarriage of justice and that there should be a new trial
    because of our determinations regarding the admission of evidence
    and the jury instructions that are discussed below.
    A. Evidentiary Rulings
    Orrico argues that the judge's limitations on the testimony
    of two of his key witnesses, both PATH employees, denied him the
    right to present evidence of PATH's negligence.   He sought to have
    5                          A-2380-15T1
    Venditolli testify if he "would agree that the person who dug the
    hole[] should have ensured that they were either filled in or
    cordoned off." The judge sustained defense counsel's objection1
    because "the question asked goes to the question of liability,
    which is ultimately a jury question. . . . He's not an expert.
    He's   a   fact   witness."   The   judge   was   also   unpersuaded   that
    Venditolli's work duties qualified him to answer the question
    because there was nothing in the incident report he prepared that
    indicated who was responsible.       Orrico contends that Venditolli,
    even though not an expert, should have been allowed to testify
    regarding his lay opinion under N.J.R.E. 701 despite the fact his
    incident report made no such assertion and his testimony goes to
    an ultimate issue to be decided by the jury.
    Orrico was also denied the opportunity to admit into evidence
    a portion of an       incident report authored by PATH Operations
    Examiner, Millard Corbett, stating the incident was caused by an
    unsafe condition "of holes dug in ballast," as well as Corbett's
    testimony that his findings were based upon looking at photographs
    of the incident scene and speaking to Venditolli and Orrico.            The
    judge rejected Orrico's contention that the report constituted a
    1
    Counsel claimed Venditolli was not an adverse witness and could
    not be asked a leading question. He also asserted no foundation
    was provided for how the holes were dug; thus, Venditolli's answer
    would have been "pure speculation" and "highly prejudicial."
    6                             A-2380-15T1
    statement by a party opponent under N.J.R.E. 803(b), determining
    the report was not a business record because it was "[Corbett's]
    job   to   fill    out   [the    report].         He's    not     an   'authorized
    representative'" of PATH and the report's findings are based upon
    hearsay.     The    judge   further       added   the    report    and   Corbett's
    testimony were inadmissible because whether the holes in the
    ballast were an unsafe condition is ultimately a jury question.
    Orrico argues the judge's refusal to admit the incident report and
    allow Corbett's testimony concerning the report was contrary to
    N.J.R.E. 701 and 704.       He contends that Corbett was an authorized
    representative of PATH and that his findings were based upon photos
    of the holes and interviews with him and Venditolli.
    We conclude that the judge mistakenly applied his discretion
    in barring Venditolli and Corbett's testimony and the latter's
    incident report.      See Hisenaj v. Kuehner, 
    194 N.J. 6
    , 16 (2008).
    A witness may offer lay opinion "if it (a) is rationally based on
    the perception of the witness and (b) will assist in understanding
    the   witness'     testimony    or   in   determining      a    fact   in   issue."
    N.J.R.E. 701.      By contrast, N.J.R.E. 702 states: "If scientific,
    technical, or other specialized knowledge will assist the trier
    of fact to understand the evidence or to determine a fact in issue,
    a witness qualified as an expert by knowledge, skill, experience,
    training, or education may testify thereto in the form of an
    7                                 A-2380-15T1
    opinion or otherwise."    N.J.R.E. 704 provides: "Testimony in the
    form of an opinion or inference otherwise admissible is not
    objectionable because it embraces an ultimate issue to be decided
    by the trier of fact."    Thus, "[i]f lay . . . opinion testimony
    is otherwise competent under N.J.R.E. 701 . . . , the fact that
    it may embrace the ultimate fact issue in dispute does not render
    it incompetent."   Biunno, Weissbard & Zegas, Current N.J. Rules
    of Evidence, cmt. 1 on N.J.R.E. 704 (2018).
    Venditolli's barred testimony fell within the parameters of
    these evidentiary rules.       Based upon his observations of the
    incident scene within minutes after it occurred, he determined
    that the holes in the ballast were an unsafe condition that were
    created by someone who should have filled in the holes to prevent
    the type of incident that Orrico claimed caused his injury.            It
    was Venditolli's responsibility as a PATH operations examiner to
    oversee the Harrison Yards and investigate an accident such as
    this, and determine how it occurred.      Though his testimony would
    have assisted the jury in understanding the ultimate issue before
    the jury – conditions of the ballast that allegedly caused Orrico's
    injury – his proffered lay opinion was admissible.
    Similarly, Corbett's report could have been admitted and his
    testimony   regarding   the   report's   findings   should   have   been
    allowed.    His finding was based upon photos and interviews of
    8                             A-2380-15T1
    Venditolli and Orrico, and should not have led the judge to deny
    the admissibility of his report or his testimony.       Corbett was
    doing the job PATH authorized him      to perform; speaking with
    witnesses and viewing any evidence, including photos.      The fact
    that his observation of the accident scene was limited to photos
    goes to the weight of his testimony not its admissibility.          His
    opinion, which was based upon his employment duties, did not
    require that he be qualified as an expert.      Furthermore, we see
    no need for the exclusion of such evidence due to a risk of undue
    prejudice substantially outweighing its probative value.   N.J.R.E.
    403.
    B. Jury Instructions
    Orrico argues the judge erred in giving jury instructions on
    actual and constructive notice. Because he contended PATH, through
    its agents or employees, created the unsafe condition of holes in
    the ballast that caused his injury, he therefore argues he did not
    have to prove that PATH knew or should have known of the unsafe
    condition as set forth in the jury instructions, section 89-11
    regarding    foreseeability   considerations,   or   section     89-15
    regarding the duty to inspect.    He also contends that since PATH
    created the unsafe condition, the judge should have included a
    respondeat superior charge.    He maintains the jury's request to
    9                            A-2380-15T1
    recharge on negligence was an indication of its confusion due to
    the misleading instructions.
    PATH    argues    that   the    notice     instructions     were    not
    prejudicial, but rather helped Orrico by providing two different
    ways to prove a foreseeable risk of harm because it could have
    been held liable for failure to inspect and notice of the unsafe
    condition even if it did not create the unsafe condition.             As for
    the respondeat superior instruction, PATH argues that Orrico did
    not object to the lack of such an objection; he included such
    instruction in his pretrial exchange but lodged no objection when
    the judge did not include it in his jury charge.                Furthermore,
    PATH maintains that the essence of a respondeat superior was
    included, when the judge instructed in section 89-22: "The fourth
    element is whether an injury to the plaintiff resulted in whole
    or in part from the negligence of the railroad or its employees
    or agents."     PATH argues the omission of the instruction still
    would not have prejudiced Orrico based on Howard v. New Jersey
    Transit Rail Operations, Inc., 
    78 F. App'x 842
    , 843 (3d Cir. 2003)
    (holding the jury instruction "that the employer was directly
    liable for the negligence of its employees" was sufficient notice
    of   the   employer's   liability    and   an   easier   standard   for   the
    plaintiff to satisfy).
    10                              A-2380-15T1
    In denying Orrico's motion for a new trial, the judge stated
    in his written decision:
    Most of the sections of the [c]ourt's charge
    including elements of a FELA cause of action,
    page 11 and 12 of the instruction, provided
    to Counsel, negligence and the definition of
    negligence,         and         foreseeability
    considerations, page 12 and 13 as well as
    thereafter   identifying   the   [d]efendant's
    responsibility to provide a safe place to work
    which duty is non-delegable and a duty to
    inspect, are all engrafted from published
    federal jury instructions, including Matthew
    Bender's publication, with the citations in
    the Court's charge to the Bender identified
    numbered section.
    A proper jury charge is essential to a fair trial.     Pressler
    & Verniero, Current N.J. Court Rules, cmt. 3.3.2. on R. 2:10-2
    (2018).   In clear, understandable language, the jury charge should
    explain the law that applies to the issues at trial.        Toto v.
    Ensuar, 
    196 N.J. 134
    , 144 (2008).    The charge "is a road map that
    explains the applicable legal principles, outlines the jury's
    function, and spells out 'how the jury should apply the legal
    principles charged to the facts of the case at hand.'"         
    Ibid.
    (quoting Viscik v. Fowler Equip. Co., 
    173 N.J. 1
    , 18 (2002)).
    Under FELA, a railroad has a "nondelegable duty to provide
    its employees with a safe place to work."   Shenker v. Balt. & Ohio
    R.R. Co., 
    374 U.S. 1
    , 7 (1963).      A plaintiff must establish the
    customary elements of a negligence action, i.e., duty, breach,
    11                           A-2380-15T1
    causation, and damages.         Stevens v. N.J. Transit Rail Operations,
    
    356 N.J. Super. 311
    , 319 (App. Div. 2003).                   The "quantum of
    evidence required to establish liability in [a] FELA case is much
    less than in an ordinary negligence case." Kapsis, 313 N.J. Super.
    at 403 (quoting Harbin v. Burlington N. R. Co., 
    921 F.2d 129
    , 131
    (7th Cir. 1990)).
    Reasonable foreseeability, however, is a prerequisite to any
    claim.     Hines v. CONRAIL, 
    926 F.2d 262
    , 268 (3d Cir. 1991).              The
    employer's    responsibility      is   measured   by   "what    a   reasonably
    prudent person would anticipate as resulting from a particular
    condition."        Gallick v. Balt. & Ohio R.R. Co., 
    372 U.S. 108
    , 118
    (1963). Nevertheless, to bypass the notice requirement in ordinary
    premises liability actions, a plaintiff may demonstrate that the
    defendant created a hazardous condition on its premises.                    See
    Smith v. First Nat'l Stores, Inc., 
    94 N.J. Super. 462
    , 466 (App.
    Div. 1967) ("Notice, either actual or constructive, is not required
    where a defendant . . . creates a dangerous condition."); Model
    Jury     Charges     (Civil),   5.20F(9),   "Notice    Not     Required    When
    Condition is Caused by Defendant" (rev. Oct. 2003).
    In this case, the claim raised by Orrico was not one of
    notice, but that PATH created the unsafe condition which caused
    his injury.        Under this limited accusation, the judge should not
    have instructed the jury on the theories of actual and constructive
    12                              A-2380-15T1
    notice because they were not consistent with his claim.            By doing
    this, along with the aforementioned mistaken discretion in barring
    the testimony that PATH employees or agents created the unsafe
    condition   that    caused    the   accident,   Orrico's   FELA   claim   was
    prejudiced.        Contrary    to   PATH's   opposition,    presenting      an
    alternative theory of liability was unnecessary and clearly could
    have influenced the jury's no cause verdict.         For the same reason,
    the judge should have instructed the jury more in line with Model
    Jury Charges (Civil), 5.10I, "Agency" (rev. Aug. 2011), which in
    part provides:
    A.   Employer/Employee
    An employee is a person (or other entity)
    engaged to perform services for another, the
    employer, and who is subject to the employer’s
    control or right to control the physical
    conduct required to perform such services. In
    determining whether a person or entity
    performing services is an employee, rather
    than an independent contractor or other
    relation, the following aspects may be
    considered:
    (1) the    extent   of   control   which,   by
    agreement, expressed or implied, the entity
    for which the services are performed has the
    right to exercise over the details of the
    services performed;
    (2) whether one performing such services is
    engaged in an occupation or business distinct
    from that of the entity for which services are
    performed;
    (3) whether the services rendered are usually
    done under the direction of the employer in
    the particular locality, or whether such
    services are usually done by a specialist
    without such direction;
    13                             A-2380-15T1
    (4) the skill required in performing the
    services;
    (5) whether the entity for which the services
    are performed supplies the instrumentalities,
    tools and place of work, or whether the entity
    performing the services supplies those items;
    (6) the length of time anticipated for the
    performance of the services;
    (7) the method of payment;
    (8) whether the services to be performed are
    part of the regular business of the entity for
    which the services are performed;
    (9) whether the parties believe they are in
    the relationship of employer and employee;
    (10) whether the entity for which services are
    to be performed is in business; and
    (11) such other factors as may be reasonably
    considered in determining whether the entity
    for which the services are being performed
    controls, or has the right to control, the
    entity performing the services.
    . . . .
    B. Respondeat Superior
    1. When Agency is in Issue:
    A principal, such as defendant [name] may act
    only through natural persons who are its
    officers,    employees    or   agents   [choose
    appropriate term].     Generally, any officer,
    employee or other agent [choose appropriate
    term] of an entity may bind that entity by
    acts and declarations made while acting within
    the scope of the authority delegated to the
    officer,    employee,     or   agent    [choose
    appropriate term] by the principal, or by acts
    and declarations made within the scope of the
    duties assigned to the officer, employee or
    other agent[choose appropriate term] of the
    principal.
    So, if you find that an officer, employee or
    agent [choose appropriate term] of defendant
    [name] acted negligently while in the scope
    of   his/her    duties   or   authority,   that
    negligence is as a matter of law charged to
    14                           A-2380-15T1
    the principal, here defendant [name]. If you
    so find, defendant [name] will be deemed
    negligent for the wrongdoing to the same
    extent as the officer, employee or agent.
    Given the specifics of Orrico's allegations, the jury would have
    been provided a better roadmap under this instruction than the one
    given: the jury must decide if Orrico's injury could have resulted
    "in whole or in part from the negligence of [PATH] or its employees
    or agents."   And, despite Orrico's failure to object at the charge
    conference, we find his pre-trial request for a respondeat superior
    charge to be an adequate notification to the judge regarding the
    law that he wanted the jury to apply.
    C. Defense Counsel's Misconduct
    Orrico argues that PATH's counsel infringed upon the "golden
    rule"   during   his   summation   when   he   asked   the   jurors   to   put
    themselves in his shoes rather than what a reasonable person would
    have done to determine if PATH was liable.             At closing, counsel
    stated:
    Put yourself in the situation. Put yourself
    in that yard. You've heard the story. You
    know the facts.      You're working in the
    Harrison Yard, reflective safety vests,
    electrical graded safety shoes. Consider your
    tasks. You're on and off and between heavy
    railroad equipment operating near the third
    rail. You've been working all morning, a full
    morning shift in the yard. You've moved 20
    to 25 different trains already.        You're
    holding over on overtime.    It’s a hot day,
    15                                A-2380-15T1
    certainly sunny, but interestingly about the
    glare from the sun, you testify specifically
    that you can see where you're going, that the
    glare doesn't bother you.
    Now you come up the ladder. You hit the
    switch for the train on six. The train comes
    in and it makes its (indiscernible). Now you
    don't wait for that train to pull out so that
    you can walk across the apron. You have to
    get to the 11 track down the yard so you cross
    in front of the equipment on six track. How
    are you doing it? How are you walking? Are
    you looking down carefully stepping over that
    third rail, that first rail, walking along the
    ties until you come to the next rail, walking
    along the ties until you come to the next rail,
    watching each step you take? And then where
    do you go? You walk towards the track.
    Well, how do you do it? If you're being
    careful, if you're being reasonable, if you've
    got your common sense you're watching where
    you're walking. That's not what happened with
    Mr. Orrico. That's not what he told us. He
    told us that after he came around the car he
    was looking straight ahead.     He didn't see
    that two and a half-foot by 1.4 foot
    depression in the ballast.
    PATH   trains,   PATH   provides   safety
    equipment, PATH provides annual refreshers and
    inspections, but PATH can't make you be
    careful and watch where you are walking.
    Orrico did not object at the time the remarks were made, but
    first raised the argument in his motion for a new trial.        The
    judge found his argument was meritless as the remarks were not
    prejudicial and, thus, did not violate the golden rule.
    16                           A-2380-15T1
    We   begin   our   review   of   Orrico's   argument   with   the
    understanding that counsel has "broad latitude" to make closing
    arguments to the jury, Diakamopoulos v. Monmouth Med. Ctr., 
    312 N.J. Super. 20
    , 32 (App. Div. 1998), but "[s]ummation commentary
    . . . must be based in truth," and counsel is not free to misstate
    the facts or the law, Bender v. Adelson, 
    187 N.J. 411
    , 431 (2006).
    Because Orrico did not object to counsel's summation at the time
    it was made, we apply the plain error rule and reverse only if the
    error could have possibly led the jury "to an unjust verdict."
    State v. G.V., 
    162 N.J. 252
    , 262 (2000) (quoting State v. Macon,
    
    57 N.J. 325
    , 335 (1971)).   In civil cases, relief under the plain
    error rule "is discretionary and 'should be sparingly employed.'"
    Cavuoti v. N.J. Transit Corp., 
    161 N.J. 107
    , 129 (1999) (quoting
    Ford v. Reichart, 
    23 N.J. 429
    , 435 (1957)); Bldg. Materials Corp.
    of Am. v. Allstate Ins. Co., 
    424 N.J. Super. 448
    , 487 n.14, (App.
    Div. 2012).   The failure to object to counsel's summation comments
    may be interpreted as an indication that the alleged errors were
    not so egregious in the context of the entire trial that they
    affected the jury's verdict.     See Tartaglia v. UBS PaineWebber,
    Inc., 
    197 N.J. 81
    , 128 (2008). Moreover, the excesses of summation
    could have been corrected at trial by a timely objection and
    curative instruction.   See Bender, 
    187 N.J. at 433
    .
    17                           A-2380-15T1
    The golden rule is based on the principle that "you should
    do unto others as you would wish them to do unto you."    Geler v.
    Akawie, 
    358 N.J. Super. 437
    , 464 (App. Div. 2003).   It is improper
    for an attorney to invoke the rule because it tends to encourage
    "the jury to depart from neutrality and to decide the case on the
    basis of personal interest and bias rather than on the evidence."
    
    Id. at 464-65
     (quoting Spray-Rite Serv. Corp. v. Monsanto Co., 
    684 F.2d 1226
    , 1246 (7th Cir. 1982)), aff'd on other grounds, 
    465 U.S. 752
    , 
    104 S.Ct. 1464
    , 
    79 L. Ed. 2d 775
     (1984).        A golden rule
    argument suggests to jurors that they should "adopt what they
    would want as compensation for injury, pain and suffering."      Id.
    at 464.
    Although the general rule is generally invoked to prohibit a
    plaintiff's appeal to the jury concerning damages, we can envision
    a situation where either party's summation might solicit the jury
    to decide liability for personal reasons and not the evidence.     We
    conclude PATH counsel came ever so close in crossing that line in
    the noted comments, and would have been better off in making more
    artful remarks by not constantly referring to "you" in addressing
    the jury.     However, considering there was no objection and our
    cautious use of plain error in civil matters, we are not convinced
    that the comments were solely so prejudicial as to cause an unjust
    result.     Therefore, we will not disturb the judge's ruling that
    18                          A-2380-15T1
    PATH's summation was not prejudicial to Orrico on the issue of
    liability.     Nevertheless, the comments taken in the light of the
    cumulative other errors provide a further basis to reverse and
    remand for a new trial.
    D. Motion For New Trial
    As noted, federal law governs a FELA action, including a
    determination of whether a verdict is contrary to the weight of
    the evidence. Kapsis, 313 N.J. Super. at 402; Pressler & Verniero,
    Current N.J. Court Rules, cmt. 1.6 on R. 4:49-1 (2014).                    When
    examining the denial of a motion for a new trial under federal
    law, a reviewing court applies the abuse of discretion standard,
    see Springer, 
    435 F.3d at 274
    , and the evidence is viewed in the
    light   most   favorable   to   the   party   for   whom   the   verdict   was
    returned, Wagner, 
    890 F.2d at 656
    .         A new trial should be granted
    "only where the 'great weight' of the evidence cuts against the
    verdict and 'where a miscarriage of justice would result if the
    verdict were to stand.'"         Springer, 
    435 F.3d at 274
     (quoting
    Sheridan, 
    100 F.3d at 1076
     (en banc)).
    In light of our determinations regarding the admission of
    evidence and the jury instructions, we conclude the jury verdict
    was a miscarriage of justice to Orrico and he should be given a
    new trial.
    19                             A-2380-15T1
    Affirmed in part, reversed in part, and remanded for a new
    trial consistent with this opinion.
    20                       A-2380-15T1