MATTHEW KEEFE VS. XAVIER FERNANDEZ(L-2250-11, BERGEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-3760-14T2
MATTHEW KEEFE,
Plaintiff-Appellant/
Cross-Respondent,
v.
XAVIER FERNANDEZ, CHRISTINA A.
IMPELLETIERE, FEDERICO FARIA,
JIMMY D'S BLUES SALOON, ANA
MAYERS, STATE OF NEW JERSEY,
NEW JERSEY DEPARTMENT OF
TRANSPORTATION, COUNTY OF BERGEN,
BOROUGH OF TETERBORO, BOROUGH
OF MOONACHIE, TOWNSHIP OF SOUTH
HACKENSACK, NEW JERSEY MEADOWLANDS
COMMISSION, TAIS HERNANDEZ, and
AMY CHARTOFF,
Defendants,
and
BOROUGH OF RIDGEFIELD, RIDGEFIELD
FIRE DEPARTMENT, TRUSTEES OF
RIDGEFIELD LADDER COMPANY NO. 1,
GARY CHARTOFF, and ANDREW CHARTOFF,
Defendants-Respondents,
and
MELISSA CHARTOFF,
Defendant-Respondent/
Cross-Appellant.
Argued February 1, 2017 – Decided June 30, 2017
Before Judges Alvarez and Manahan.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. L-2250-11.
Rosemarie Arnold argued the cause for
appellant/cross-respondent (Law Offices of
Rosemarie Arnold, attorneys; Ms. Arnold and
Paige R. Butler, on the briefs).
Ian C. Doris argued the cause for respondents
Borough of Ridgefield, Ridgefield Fire
Department, Trustees of Ridgefield Ladder
Company No. 1, Gary Chartoff, and Andrew
Chartoff (Keenan & Doris, LLC, attorneys;
Thomas A. Keenan, of counsel; Bernadette M.
Peslak, on the brief).
Anthony J. Accardi argued the cause for
respondent/cross-appellant (Accardi & Mirda,
P.C., attorneys; Mr. Accardi, of counsel and
on the brief).
PER CURIAM
Plaintiff Matthew Keefe appeals from a jury verdict finding
no cause of action against the only remaining defendant, Melissa
Chartoff (Chartoff), in his personal injury action against
multiple parties. He also appeals the court's earlier ruling
granting summary judgment to defendants Gary and Andrew Chartoff. 1
Chartoff cross-appeals the court's partial denial of an earlier
1
We will refer to them as Gary and Andrew in order to avoid
confusion with Chartoff, since the three are family members who
share the same last name. We collectively refer to Chartoff,
Gary, and Andrew as "the Chartoffs."
2 A-3760-14T2
motion for summary judgment. That decision left intact for trial
the fifth count of Keefe's third amended complaint. We now affirm.
Briefly, Keefe was severely injured when he was struck by a
drunken driver. The extent and nature of his injuries are not in
dispute. The responsible driver, Xavier Fernandez, allegedly
became intoxicated while attending a baby shower at a fire hall.
The issue in dispute is whether Chartoff's contributions to
the baby shower arrangements caused her to fall within the purview
of the social host statute, N.J.S.A. 2A:15-5.5 to -5.8. The same
question arises as to Gary and Andrew with regard to the motion
for summary judgment.
Chartoff, Maggie Ramirez, and Thais Hernandez were close
friends. Ramirez and her husband Federico Faria were expecting,
and Faria wanted to organize a baby shower, consisting of a large
number of his friends and members of his family. He asked Chartoff
to arrange the use of the Ridgefield Fire Department social hall
through her father, Gary, who is a fireman and member of Ridgefield
Hose Company No. 1. Chartoff was also responsible for printing
the shower invitations, which were distributed by Faria mainly
through his barber shop. She also carried decorations to the hall
before the party. Faria employed the services of a bartender and
a disc jockey for the party.
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Chartoff's brother Andrew, also a fireman, represented the
Ridgefield Hose Company No. 1 during the party —— which meant he
was responsible for cleanup afterwards and was required to be
present during the party to ensure the premises were not damaged.
The Chartoffs had nothing to do with making up the guest
list, distributing invitations, selecting food or drink, or any
other aspect of hosting the event. Chartoff testified that she
was acquainted with no more than ten people at the shower,
including her mother and the parents-to-be. Neither she nor anyone
in her family were acquainted with Fernandez, and neither Chartoff
nor Gary recalled seeing him during the party.
The trial took place over twenty-one days, ending on January
14, 2015. During her summation, which the trial judge interrupted
four times, Keefe's attorney attacked the truthfulness of the
defense witnesses, including the Chartoffs, and counsel. As the
trial judge described it, Keefe's attorney said that "the defense
case was set up[,]" and that Chartoff's attorney attempted to
confuse or mislead the jury.
Keefe's attorney objected on the record, before
deliberations, to the instruction the judge proposed to give the
jury about her summation. The basis for Keefe's attorney's
objection was twofold, that Chartoff's counsel had attacked her
during his summation, and that although an instruction regarding
4 A-3760-14T2
inappropriate comments by both attorneys might be warranted, she
should not be singled out for criticism. Keefe's counsel was also
concerned that the instruction the judge fashioned would
completely undermine the theory of the case she had argued to the
jury: that the Chartoffs, Faria, and Ramirez had concocted a
false narrative so Chartoff could avoid any legal liability.
Nonetheless, the judge gave the instruction. The events following
summation and the instruction are set forth in detail in the
relevant sections.
After the jury returned its no cause of action decision, the
judge denied Keefe's motion for judgment notwithstanding the
verdict. See R. 2:10-1. Keefe raises the following points for
our consideration:
POINT I
THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT TO ANDREW AND GARY CHARTOFF AS AGENTS
OF THE RIDGEFIELD HOSE COMPANY NUMBER ONE,
INC. IN THE FACE OF FACT ISSUES AS TO WHETHER
THEY WERE SOCIAL HOSTS WITHIN THE MEANING OF
N.J.S.A. 2A:15-5.5.
POINT II
THE SUMMARY JUDGMENT IN FAVOR OF ANDREW AND
GARY MANIFESTLY DISTORTED THE TRIAL TO
PLAINTIFF'S DETRIMENT.
POINT III
THE JURY VERDICT IN FAVOR OF MELISSA CHARTOFF
WAS AGAINST THE WEIGHT OF THE EVIDENCE AND
RESULTED IN A MISCARRIAGE OF JUSTICE,
COMPELLING A JNOV OR A NEW TRIAL.
5 A-3760-14T2
A. Melissa Admitted at Trial that she
Expressly Invited People to the Baby
Shower by, inter alia, Designing,
Printing and Putting Labels on the
Invitations, as well as Sending
Invitations.
B. Melissa's Conduct Amounted to an Implied
Invitation.
POINT IV
THE TRIAL COURT'S DECISION TO PERMIT NON-PARTY
FARIA TO APPEAR ON THE JURY VERDICT SHEET FOR
PURPOSES OF APPORTIONMENT OF FAULT, WAS AN
ERROR THAT LED TO AN UNJUST VERDICT.
POINT V
THE TRIAL JUDGE ERRED BY CONTINUOUSLY
INTERRUPTING PLAINTIFF'S SUMMATION AND THEN
GIVING AN INSTRUCTION SUA SPONTE TO THE JURY
AS PART OF ITS CHARGE THAT IMPORTANT ARGUMENTS
IN THE SUMMATION SHOULD BE DISREGARDED,
DESPITE THE LACK OF OBJECTION BY DEFENSE
COUNSEL. THIS RULING DEMEANED COUNSEL AND
QUESTIONED HER CREDIBILITY AND SEVERELY
UNDERMINED THE ENTIRE PRESENTATION OF
PLAINTIFF'S CASE.
A. Summation.
B. Plaintiff's Counsel's Comments during
Summation were Completely Legitimate
Based Upon the Evidence at Trial.
Chartoff's cross-appeal states:
IN THE EVENT THE APPELLATE COURT VACATES THE
JURY VERDICT AND REMANDS FOR A NEW TRIAL, THEN
MELISSA CHARTOFF APPEALS THE DENIAL OF HER
MOTION FOR SUMMARY JUDGMENT ON THE 5TH COUNT
OF THE THIRD-AMENDED COMPLAINT.
A. Standard of Review.
6 A-3760-14T2
B. Melissa Chartoff did not "provide"
alcoholic beverages to Xavier N.
Fernandez; as such, Melissa Chartoff
cannot be held liable for Plaintiff's
injuries under N.J.S.A. 2A:15-5.5, et
seq.
C. Judge Steele erred as a matter of law in
denying Melissa Chartoff's motion, which
error warrants the reversal of her order
and the grant of summary judgment in
Melissa Chartoff's favor.
I.
A.
We review a grant of summary judgment de novo, meaning we
apply the same standard that governed the trial court. Henry v.
N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (citing
Busciglio v. Della Fave, 366 N.J. Super. 135, 139 (App. Div.
2004)). Summary judgment must be granted if "the pleadings,
depositions, answers to interrogatories and admissions on file,
together with affidavits, if any, show that there is no genuine
issue as to any material fact challenged, and that the moving
party is entitled to a judgment or order as a matter of law." R.
4:46-2(c); see Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 529-30 (1995).
In conducting this review, we interpret the facts, and any
inferences therefrom, in the light most favorable to the non-
moving party. See Lippman v. Ethicon, Inc., 222 N.J. 362, 367
7 A-3760-14T2
(2015) (citing Brill, supra, 142 N.J. at 523, 540). If there is
a genuine issue as to any material fact, summary judgment should
be denied. R. 4:46-2(c); Brill, supra, 142 N.J. at 540.
B.
Pursuant to N.J.S.A. 2A:15-5.6, an injured party:
may recover damages from a social host only
if:
(1) The social host willfully and knowingly
provided alcoholic beverages either:
(a) To a person who was visibly
intoxicated in the social host’s
presence; or
(b) To a person who was visibly
intoxicated under circumstances
manifesting reckless disregard of
the consequences as affecting the
life or property of another; and
(2) The social host provided alcoholic
beverages to the visibly intoxicated person
under circumstances which created an
unreasonable risk of foreseeable harm to the
life or property of another, and the social
host failed to exercise reasonable care and
diligence to avoid the foreseeable risk; and
(3) The injury arose out of an accident caused
by the negligent operation of a vehicle by the
visibly intoxicated person who was provided
alcoholic beverages by a social host.
[N.J.S.A. 2A:15-5.6.]
Keefe objects to the grant of summary judgment, contending
that there was a genuine issue of material fact regarding whether
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or not Andrew and Gary invited guests to the premises, and whether
they were social hosts within the meaning of the statute. In
rendering his decision, the judge found that Gary and Andrew did
not invite any guests to the shower and were otherwise uninvolved
in the arrangements or giving of the party. He also found that
Andrew was present during the event solely to ensure the premises
were not damaged, and as a representative of the fire company.
Accordingly, neither man was a social host within the meaning of
the statute.
A social host is defined as:
a person who, by express or implied
invitation, invites another person onto an
unlicensed premises for purposes of
hospitality and who is not the holder of a
liquor license for the premises and is not
required to hold a liquor license for the
premises . . . , and who legally provides
alcoholic beverages to another person who has
attained the legal age to purchase and consume
alcoholic beverages.
[N.J.S.A. 2A:15-5.5.]
Gary's involvement was limited to approving the use of the
premises. The record is bare of any suggestion that Gary had any
other involvement. Nothing in the record suggests that he even
knew that alcohol would be served. Thus, he could not be found
to have "legally provide[d] alcoholic beverages to another
person[.]"
9 A-3760-14T2
Like his father, Andrew had nothing to do with planning or
preparation for the party. His mere presence at the hall does not
make him a person who "provided" alcohol to the guests. As a
matter of law based on uncontroverted facts, neither was a social
host. Summary judgment was properly granted.
C.
Little needs to be said about Keefe's claim that the grant
of summary judgment to Gary and Andrew "manifestly distorted the
trial to [Keefe's] detriment[.]" Undoubtedly, the case would have
been stronger had Keefe been able to establish that the baby shower
was a "joint Chartoff family event[.]" That would have required
entirely different circumstances than those we see in the record,
however. Hence, the grant of summary judgment to Gary and Andrew
did not in any way prejudice plaintiff's presentation. The point
is so lacking in merit as to not warrant further discussion in a
written opinion. R. 2:11-3(e)(1)(E).
II.
A.
We should not reverse a trial court's denial of a motion for
judgment notwithstanding the verdict (JNOV) unless it "clearly
appears that there was a miscarriage of justice under the law."
R. 2:10-1. In reaching a decision, we focus "on whether the
evidence submitted to the jury, and any legitimate inferences
10 A-3760-14T2
which can be drawn from that evidence, support the jury verdict."
Wade v. Kessler Institute, 343 N.J. Super. 338, 354 (App. Div.
2001) (citing Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396,
415 (1997)). In performing this review, we "must accept as true
all evidence supporting the position of the party defending against
the motion and must accord that party the benefit of all legitimate
inferences which can be [deduced from the evidence]." Besler v.
Board of Educ. of West Windsor-Plainsboro Regional School Dist.,
201 N.J. 544, 572 (2010) (alteration in original) (quoting Lewis
v. Am. Cyanamid Co., 155 N.J. 544, 567 (1998)). The jury's factual
determinations should only be disturbed if the reviewing court
finds that the jury could not have reasonably reached its verdict
on the evidence presented at trial. Sons of Thunder, supra, 148
N.J. at 415.
A trial judge "shall grant" a motion for a new trial "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."
R. 4:49-1(a). We review a trial court order denying a new trial
under essentially the same standard as that applied by the trial
court. Hill v. N.J. Dept. of Corr., 342 N.J. Super. 273, 302
(App. Div. 2001) (citing R. 2:10-1). "This standard applies
whether the motion is based upon a contention that the verdict was
11 A-3760-14T2
against the weight of the evidence, or is based upon a contention
that the judge's initial trial rulings resulted in prejudice to a
party." Ibid. (citing Crawn v. Campo, 136 N.J. 494, 510-12
(1994)). If there was legal error during the trial, we also accord
deference to the trial judge's evaluation of the prejudice that
resulted, and whether that prejudice contributed to an unjust
result. Ibid. (citing Crawn, supra, 136 N.J. at 512).
B.
We simply cannot agree with Keefe that the denial of his
motion for JNOV was a miscarriage of justice under the law. There
was no proof that Chartoff did anything more than print invitations
and help in securing the hall. Chartoff had nothing to do with
the creation of the guest list, the provision of food, or the
provision of drinks. Of the 100 or so partygoers, she knew about
ten of them. To the best of her knowledge, Chartoff never saw the
driver. She did not provide anyone with alcohol at the event.
Accepting Chartoff's evidence as true, and giving her the benefit
of all favorable inferences, it does not appear that the jury
reached an unjust result. There was no evidence to support finding
Chartoff a social host.
Nor was the verdict a miscarriage of justice. A motion for
a new trial "should be granted only where to do otherwise would
result in a miscarriage of justice shocking to the conscience of
12 A-3760-14T2
the court." Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J.
506, 521 (2011). There was no proof that Chartoff was a social
host or that she provided the driver with alcohol. The jury's
verdict was reasonable in light of the evidence.
III.
A.
The jury is entitled to clear and correct charges, and their
absence may constitute plain error. Wade v. Kessler Inst., 172
N.J. 327, 341 (2002). However, we will not disturb a jury's
verdict "where the charge, considered as a whole, adequately
conveys the law and is unlikely to confuse or mislead the jury,
even though part of the charge, standing alone, might be
incorrect." Ibid. (quoting Fischer v. Canario, 143 N.J. 235, 254
(1996)). See also, Sons of Thunder, supra, 148 N.J. at 418. The
same standard of review applies to jury interrogatories and verdict
sheets. Ibid.
The four-page verdict sheet asked in the first question:
1. Has plaintiff Matthew Keefe proven by a
preponderance of the evidence that
Melissa Chartoff was a social host, as
defined by law, by either expressly or
impliedly inviting another person or
persons to the party on January 22, 2011?
Yes________ No √ Vote 8-0
If you answered "yes" to this question,
then proceed to answer question #2; if
13 A-3760-14T2
you answered "no" to this question, then
stop your deliberations, proceed no
further and return your verdict.
The jury decided that Chartoff was not a social host, and
therefore stopped deliberations after the first question. The
argument raised by Keefe that the driver should not have been
included on the later questions is essentially moot as the jury
never reached those questions.
Nonetheless, we briefly reiterate well-established legal
principles. The court was required to include Faria under the
Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8. "[T]he
trier of fact must allocate the percentage of fault among the
settling and non-settling defendants to enable the court to
calculate the percentage attributable to the non-settlers."
Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 112-113 (2004)
(citing Young v. Latta, 123 N.J. 584, 592 (1991)).
It is well established that a defendant who is not protected
by statutory immunity, but was dismissed from the case on some
other grounds, "remains a 'party' to the case for the purpose of
determining the non-settling defendant's percentage of fault."
Town of Kearny, supra, 214 N.J. at 100 (quoting Brodsky, supra,
181 N.J. at 113); see also R. 4:7-5(c); Verni ex rel. Burstein v.
Harry M. Stevens, Inc., 387 N.J. Super. 160, 205, 215 (App. Div.
2006) (reversing grant of motions for summary judgment filed by
14 A-3760-14T2
personal injury plaintiff on behalf of settling defendants in
order to bar allocation of fault to settling defendants), certif.
denied, 189 N.J. 429 (2007).
Likewise, it does not matter that defendants failed to
properly serve their cross-claim for contribution against Faria.
In Young v. Latta, supra, 123 N.J. at 586, the Court held this
credit "is available in every case in which there are multiple
defendants, whether or not a cross-claim for contribution has been
filed."
Accordingly, mention of Faria had no impact on the jury's
verdict because they never reached the pages of the verdict sheet
that mention him, much less the question. In any event, the
judge's decision to include him was correct on the law.
IV.
Finally, we address Keefe's contention that the judge erred
by interrupting her summation and giving the jury instruction
regarding her summation comments. We note that despite identifying
the interruptions, Keefe does not explain how they might have
affected jury deliberations, the jury's perception of his counsel,
or the final verdict. The interruptions, as enumerated by Keefe,
were: (1) the court interrupted counsel to only comment on the
evidence not to testify; (2) the court criticized counsel's
operation of the power point presentation containing slides of
15 A-3760-14T2
trial testimony; (3) the court interrupted counsel and gave a
curative instruction regarding a comment made by Keefe's attorney
as to the nonappearance of a nonparty witness; (4) the court
interrupted counsel, instructing her not to use the names of jurors
when giving hypotheticals. Having considered the entirety of the
trial record, we conclude these interruptions do not have the
potential to have led the jury to an unfair result.
At the close of Keefe's counsel's summation, Chartoff's
attorney moved for a mistrial because of Keefe's attorney's closing
comments regarding the alleged conspiracy to protect Chartoff from
liability, and the alleged dishonesty of the witnesses. Although
she denied the motion, the judge informed counsel that she intended
to draft an instruction advising the jury to ignore the statements.
She later read the instruction, and allowed Keefe's attorney to
fully place her objections to it on the record. The instruction
reads:
The lawyers are here as advocates for
their clients. In their opening statements
and their summations they have given you and
their views of the evidence and their
arguments in favor of their client's position.
While you may consider their comments, nothing
that the attorneys say is evidence. And their
summations or their comments are not binding
on you, any comment from counsel.
And now jurors, I do have an additional
instruction that I wish to give you, that is
not in the submission. At this time I address
16 A-3760-14T2
something with you, the jury, that involves
comment of counsel in the summations that you
heard yesterday, and in particular with regard
to plaintiff's counsel's summation which you
heard yesterday afternoon. In that summation,
you may have heard or remember comment of
plaintiff counsel stating more than once, "the
defense case was setup from the beginning to
mislead you" or words to that effect. You may
have heard or remember other similar or
related comment or argument of plaintiff
counsel in what she characterized as defense
counsel's attempt to confuse you, mislead you,
or to present a rouse to you in the defense
case.
You are instructed that this argument by
plaintiff counsel has no rightful place in
proper commentary on the evidence before you.
In summations counsel are permitted to argue
and comment on the evidence presented and to
comment on the credibility of the witnesses
presented. These comments by plaintiff
counsel were improper and as such you are
instructed to disregard argument or comment
that suggested to you that the defense is
trying to mislead you or rouse you with the
evidence.
The point is . . . that you are to
consider argument of counsel that does comment
on the evidence, and does comment on the
credibility of the testimony presented.
Nothing that the attorneys say is evidence,
either one. And finally, as I've instructed
to you previously nothing that either attorney
has said is binding upon you.
After reviewing Keefe's summation, we find the instruction
was warranted. Impugning the trustworthiness of defense counsel
and the character of the defense witnesses and Chartoff herself
17 A-3760-14T2
when there was no basis in the record to do so required action by
the court.
"In general, we afford counsel broad latitude in closing
arguments." Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 128
(2008) (citing Bender v. Adelson, 187 N.J. 411, 431 (2006)).
However, "it is improper for an attorney to make derisive
statements about parties, their counsel, or their witnesses."
Szczecina v. PV Holding Corp., 414 N.J. Super. 173, 178 (App. Div.
2010); see also Henker v. Preybylowski, 216 N.J. Super. 513, 518-
520 (App. Div. 1987) (noting that the cumulative effect of
inappropriate comments by plaintiff's counsel, including remarks
on motives and trustworthiness of defense counsel, "probably"
entitled defendant to a new trial); Rodd v. Raritan Radiologic
Associates, P.A., 373 N.J. Super. 154, 171 (App. Div. 2004)
(citations omitted) ("attorneys . . . may not use disparaging
language to discredit the opposing party, or witness, . . . or
accuse a party's attorney of wanting the jury to evaluate the
evidence unfairly, of trying to deceive the jury, or of
deliberately distorting the evidence."); Tabor v. O'Grady, 59 N.J.
Super. 330, 340-341 (App. Div. 1960) (holding plaintiffs' counsel
"far exceeded the bounds of proper comment and argument" by casting
"unjustified aspersions on defense counsel's motives" and by
describing the defense as "'replete with misleading red herrings'
18 A-3760-14T2
and . . . based on trickery, shameful conduct, and the pulling of
'stunts'").
We cannot agree with Keefe's counsel's characterization of
the trial record. The attacks on Chartoff's attorney and the
defense testimony exceeded the bounds of legitimate disagreement.
Counsel was clearly using disparaging language with the intent of
raising a suspicion in the juror's minds that some unspecified
conspiracy was at play to protect Chartoff from liability. That
suggestion was not supported by the trial record, exceeded the
bounds of proper commentary, and made the issuance of a jury
instruction necessary. We also disagree that Chartoff's
attorney's summation justified the response.
The judge's instruction was prefaced by the standard model
jury charge language regarding the role of attorneys. And although
the judge told the jury that the argument that Chartoff's counsel
was attempting to mislead them had no "rightful place in proper
commentary on the evidence[,]" she went on to discuss the
difference between argument and evidence. The judge reiterated
that nothing "either" attorney said in summation is evidence. The
judge ended with "nothing that either attorney has said is binding
upon you."
The instruction was necessitated by Keefe's counsel's
summation. It underscored that the arguments made by the attorneys
19 A-3760-14T2
are distinct and separate from the evidence, and that only the
jury's independent assessment of that evidence determined the
verdict, not the opinion of the judge or attorneys, or any comments
they may have made.
V.
Finally, we do not address Chartoff's cross-appeal. It is
unnecessary in light of our decision to affirm the jury's verdict.
Affirmed.
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