MAUREEN GREENFELD VS. B.C.T. IMPORTS, INC., D/B/A TOYOTA UNIVERSE, INC. (L-1826-13, PASSAIC COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-3815-15T3
MAUREEN GREENFELD,
Plaintiff-Appellant,
v.
B.C.T. IMPORTS, INC.,
d/b/a TOYOTA UNIVERSE, INC.,
and BOB CIASULLI AUTO GROUP,
INC.,
Defendants-Respondents,
and
CHRISTIAN SEMPRIVIVO,
Defendant.
________________________________
Argued March 15, 2018 – Decided June 25, 2018
Before Judges Simonelli, Haas and Rothstadt.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Docket No. L-
1826-13.
Ronald L. Lueddeke argued the cause for
appellant (Lueddeke Law Firm, attorneys;
Ronald L. Lueddeke and Karri Lueddeke, on the
brief).
Resa T. Drasin argued the cause for
respondents (Woehling Law Firm, PC, attorneys;
Resa T. Drasin, on the brief).
PER CURIAM
Plaintiff, Maureen Greenfeld, appeals from a final judgment
dismissing her complaint that the trial judge entered after a jury
unanimously found in favor of defendants, B.C.T. Imports, Inc.,
d/b/a Toyota Universe, Inc., (Toyota Universe), and Bob Ciasulli
Auto Group, Inc.1 Plaintiff, a former employee of Toyota Universe,
sued defendants under the Conscientious Employee Protection Act
(CEPA), N.J.S.A. 34:19-1 to -14, the New Jersey Law Against
Discrimination, N.J.S.A. 10:5-1 to -42, and for violations of New
Jersey's Wage and Hour Law, N.J.S.A. 34:11-56a to -56a38.
Plaintiff filed suit against Toyota Universe when it terminated
her employment after she filed wage and hour and discrimination
claims with the New Jersey Department of Labor (NJDOL), the United
States Department of Labor (USDOL), and the Equal Employment
Opportunity Commission (EEOC).
Plaintiff's arguments on appeal focus upon rulings made by
the trial judge barring the admission into evidence of an audit
file from the NJDOL that she claims the parties had agreed pre-
trial to admit into evidence. She also challenges the judge's sua
1
Plaintiff voluntarily dismissed her complaint against defendant
Christian Semprivivo.
2 A-3815-15T3
sponte decision to charge the jury with an allegedly unwarranted
curative instruction in response to comments made by her attorney
during his closing argument, and the judge's denial of plaintiff's
motion for a new trial. For the reasons stated herein, we vacate
the judgment entered in favor of defendants and remand the matter
for a new trial.
The facts adduced at trial are summarized as follows.
Plaintiff was hired by Toyota Universe as its payroll administrator
in June 2002 and was paid a $620 weekly salary. She briefly left
to work at another company, but was rehired in October 2005 at a
weekly salary of $700 and promised an increase to $750 per week
after three months. At the time Toyota Universe rehired her, a
note on her payroll change notice stated that "[plaintiff] is [a]
very professional[,] organized individual" and that "she is an
asset to [the] company." Despite her favorable evaluation, she
was never paid the increase promised after three months and, in
fact, her salary was decreased at one point due to cutbacks. By
2006 her salary was increased to $775 per week, which was her
salary upon her termination in August 2012. During her years of
employment, plaintiff was never paid for working overtime.
On April 9, 2012, plaintiff sent a letter to her supervisor,
Patricia Kornfeld, stating that she had not been given a raise
since April 2006, and that she had worked more than her required
3 A-3815-15T3
hours in the first eight weeks of 2012, but had not received
overtime pay. Kornfeld consulted with the company's general
manager Semprivivo, and plaintiff was given a $20 per week increase
– a total of $795 per week – effective the first payroll of June
2012. According to Kornfeld, when she told plaintiff about the
raise, plaintiff responded, "that's it?" The conversation
concluded with Kornfeld giving plaintiff payroll forms for two
other employees who were clerks in the same department, since
plaintiff was the payroll administrator.
Plaintiff was "immediately agitated" when she saw that she
received a lower raise than the other employees, who were younger
than her. According to defendants, the two employees received
raises based on promotions, which Toyota Universe had not given
to plaintiff. On June 8, 2012, plaintiff and Semprivivo met to
discuss plaintiff's dissatisfaction with her raise. The parties
disputed what occurred at that meeting, specifically whether
plaintiff asked to be fired so she could collect unemployment. It
was undisputed, however, that Semprivivo told her that she was
"maxed out, top of the scale, [so] why not retire[,]" and offered
her the possibility of moving into new positions that would pay
more, which plaintiff rejected. According to plaintiff, she was
not told during this meeting that she would be fired. Toyota
Universe asserts that the decision to terminate plaintiff was made
4 A-3815-15T3
after plaintiff asked Semprivivo to fire her during the June 8
meeting.
On June 9, 2012, plaintiff sent letters to the NJDOL,2 the
USDOL, and the EEOC, alleging that Toyota Universe was in violation
of numerous labor laws, including non-payment of overtime for
certain employees, improper payroll deductions, age
discrimination, hostile workplace environment, and disparate
treatment. Plaintiff claimed she became concerned in January 2012
about her classification as an exempt employee when she reviewed
a newsletter from the company's payroll service on that topic.
However, plaintiff admitted that she would not have sent the
letters had she been given the raise that she wanted.
According to plaintiff, shortly after filing her complaints,
she received a phone call from Daniel Pope, a representative from
the NJDOL. After the NJDOL sent a notice of audit on June 14,
2012, Pope visited the dealership on June 25, 2012, to conduct an
audit. Plaintiff was not aware if her employer knew she had filed
complaints with the NJDOL. In anticipation of Pope's visit,
2
Plaintiff later withdrew her complaint with the NJDOL in order
to pursue the underlying action in the Law Division.
5 A-3815-15T3
Kornfeld had plaintiff put the necessary payroll records together
for Pope's review.3
After the audit, the NJDOL issued to Toyota Universe a notice
of alleged violations. In response, Toyota Universe created job
classifications for the subject employees, including plaintiff,
which described them as exempt employees not entitled to overtime
pay.
Plaintiff stated that she was misclassified as an exempt
employee as she was not employed in an administrative capacity and
did not exercise "independent judgment[.]" As a result, plaintiff
believed that if she was properly classified, she would have
received nearly $5800 in overtime pay because she was not an exempt
employee. Plaintiff never discussed being misclassified with her
employer before contacting the NJDOL.
3
As discussed infra, although not disclosed to the jury, the
audit files revealed that the NJDOL made a determination that
Toyota Universe had not paid overtime to a few employees who were
eligible. In response to its findings, Toyota Universe created
job descriptions for various positions, including plaintiff's, and
explained to the NJDOL why the employees working in those positions
were not entitled to overtime pay. The NJDOL amended its findings,
cited Toyota Universe for limited violations, and entered into an
agreement with Toyota Universe that required certain payments to
a few employees, including plaintiff who was entitled to
approximately $3700. According to the agreement signed by Toyota
Universe and the NJDOL, the finding would be the basis for a prior
offense if Toyota violated the wage and hour laws in the future.
6 A-3815-15T3
Prior to the audit, on June 15, 2012, Semprivivo called
plaintiff into his office to discuss plaintiff's continued
employment. According to plaintiff, he told her "that he was
prepared to give [her] what [she] wanted and [when she] questioned
[what] that [was,] he said [they] will terminate [her] as long as
[she] sign[ed] a waiver of voluntary separation[, to which
plaintiff] said absolutely not." Plaintiff never signed a waiver
of any claim.
Semprivivo stated that at the June 15 meeting, plaintiff
"changed her mind" and wanted to stay, but he decided to let her
go anyway. After the meeting, he spoke with Kornfeld and when he
told her he was terminating plaintiff, she asked him to delay
plaintiff's termination until August due to staffing concerns.
According to Semprivivo, the decision to terminate plaintiff was
made on June 15, but her termination was delayed per Kornfeld's
request. At the time the decision was made to fire plaintiff,
Toyota Universe was not aware that she had filed claims with the
three agencies. During the remainder of June, there were no
further discussions with plaintiff, nor was there any
communication between Toyota Universe and the agencies plaintiff
had contacted until the notification it received about the audit.
In early July 2012, Toyota Universe received a notification
from the EEOC advising it of the agency's receipt of plaintiff's
7 A-3815-15T3
complaint. Upon Toyota Universe's receipt of the notice, Kornfeld
confronted plaintiff asking her what it was about, and less than
one month later, on August 8, 2012, Kornfeld signed a termination
report for plaintiff, officially terminating plaintiff on August
15, 2012. Toyota Universe contends that since the decision to
fire plaintiff was made in early June 2012 – before the audit was
conducted and letters from the labor agencies arrived at the
dealership – her termination was not a result of her alleged
whistle-blowing activity. This is because no one at Toyota
Universe knew that plaintiff filed the complaints when she did,
and it had already made the decision to terminate her employment
in June. Rather, Semprivivo testified that he terminated plaintiff
because of her "unhappiness with financials[,]" her "not getting
along with anybody[, a]nd due" to a negative experience Semprivivo
previously had with a disgruntled employee while he was employed
by another car dealership across the street. However, plaintiff
had no idea what that incident at the other dealership was about,
and it was also undisputed that she had no involvement with the
other dealership.
After considering the evidence, the jury returned a verdict
of no cause, finding that plaintiff was not terminated because of
her age or because she filed complaints with the government
agencies. It also found that defendants proved that plaintiff
8 A-3815-15T3
"was employed in a bona fide administrative capacity and therefore
exempt from overtime pay[.]" Based on the jury's verdict, the
trial judge entered judgment dismissing the complaint. Plaintiff
filed a motion for new trial, which the judge denied. This appeal
followed.
We first address plaintiff's challenge to the curative
instruction that the trial judge gave to the jury in response to
comments her counsel made about the NJDOL's amended notice of
alleged violations, one of the two documents from the audit file
that the judge admitted into evidence.
During his summation, counsel stated that the document:
seals the deal on the reasonable belief as to
Wage and Hour because the [NJDOL] themselves
found notices of violations. So, she believed
them, they believed them, . . . they did the
audit. They confirmed all her numbers and
they issued a notice of alleged violation.
So, it went from reasonable belief to . . . a
notice of allegation.
After plaintiff’s closing argument, without any objection by
defendants' attorney, the judge called both counsel into chambers
to discuss plaintiff's counsel's reference to the NJDOL having
"confirmed all of [plaintiff's] numbers." In response to the
judge pointing out to counsel that the amended notice of alleged
violations was not a determination and was not evidence indicating
that the NJDOL believed plaintiff, plaintiff's counsel
9 A-3815-15T3
acknowledged that the judge was correct and apologized for the
misstatement. The judge determined that a curative instruction
was necessary even though the defense did not raise an objection
during closing arguments. Plaintiff's counsel did not object to
the judge making a curative instruction.
After the break, without any input from counsel, the judge
instructed the jury:
[T]here's just one thing I do want to clarify.
There was a comment that was made in
plaintiff[']s summation referencing [the
amended notice of alleged violations] which
came from [the NJDOL]. It had to deal with
the . . . Wage and Hour claim, and the comment
was something to the effect that you know,
that the [NJDOL] believed that particular
allegation or complaint being made by the
plaintiff, and that's really inaccurate. That
document does not indicate any determination
or belief on the part of the [NJDOL]. It's a
mere allegation. What [the NJDOL is] simply
doing is indicating that there is now an
allegation. There is no determination of the
accuracy of that and it should not be viewed
in that sense. It's merely an allegation. It
is not a determination of the correctness of
the allegation. It is not a belief in the
accuracy of the allegation. It is not a
confirmation of the numbers. It is an
allegation. An allegation means a charge.
Plaintiff argues that the judge's instruction was improper
because had the entire audit file been admitted, it would have
established that her attorney's comment was correct. We disagree.
10 A-3815-15T3
We conclude that plaintiff's contention is "without
sufficient merit to warrant discussion in a written opinion[.]"
R. 2:11-3(e)(1)(E). Suffice it to say, plaintiff's counsel's
summation should have been limited to comments about only admitted
evidence. "Comments during summation . . . should be centered on
the truth and counsel should not 'misstate the evidence nor distort
the factual picture.'" Tartaglia v. UBS PaineWebber, Inc., 197
N.J. 81, 128 (2008) (quoting Bender v. Adelson, 187 N.J. 411, 431
(2006)). Here, the judge properly identified an undisputed
improper characterization of the evidence and issued a proper
curative instruction. See State v. Vallejo, 198 N.J. 122, 134
(2009); State v. Winter, 96 N.J. 640, 647 (1984). The amended
notice of alleged violations clearly was not as counsel stated, a
confirmation that plaintiff was correct, and as counsel
acknowledged, he should not have led the jury to believe otherwise.
We turn next to plaintiff's argument challenging the trial
judge's exclusion of the remaining documents in the NJDOL's audit
file, which had been produced by defendants in discovery, but were
barred sua sponte by the judge, despite the parties' alleged pre-
trial stipulation to its admission. Plaintiff attempted to proffer
the audit file to prove that she had a reasonable belief that
11 A-3815-15T3
Toyota Universe acted unlawfully as required by CEPA,4 by
misclassifying her position and failing to pay her overtime. The
trial judge barred the evidence after he concluded that it was
unduly prejudicial, and that plaintiff waived the right to contest
issues within the audit file – i.e. the amount of overtime pay
owed to her, if any - when she commenced the lawsuit instead of
appealing through the NJDOL. The judge stated that admitting the
documents would require "a trial within a trial" as to the accuracy
of the NJDOL's ultimate conclusions. Apparently, the judge was
concerned that the file would permit the jury to rely upon the
NJDOL's findings as to plaintiff's claims rather than the evidence
presented at trial.
The judge excluded almost the entire audit file despite the
fact that defendants never objected to its admission. As already
noted, he only allowed two documents from the file: the notice of
audit and the amended notice of alleged violations. He did not
allow any documents indicating the NJDOL's final determinations
as to whether defendants violated any wage and hour laws or
4
As explained in more detail infra, CEPA bars an employer from
"retaliatory action against an employee because the employee"
objects to participating in "any activity . . . which the employee
reasonably believes[] is in violation of a law . . . ." N.J.S.A.
34:19-3(c)(1).
12 A-3815-15T3
regulations. Plaintiff contends on appeal that the exclusion of
the evidence was improper. We agree.
Our review of a trial judge's evidential rulings is "limited
to examining the decision for abuse of discretion." Hisenaj v.
Kuehner, 194 N.J. 6, 12 (2008) (citing Brenman v. Demello, 191
N.J. 18, 31 (2007)). "When a trial court admits or excludes
evidence, its determination is 'entitled to deference absent a
showing of an abuse of discretion, i.e., [that] there has been a
clear error of judgment.'" Griffin v. City of E. Orange, 225 N.J.
400, 413 (2016) (alteration in original) (quoting State v. Brown,
170 N.J. 138, 147 (2001)). Therefore, "we will reverse an
evidentiary ruling only if it 'was so wide off the mark that a
manifest denial of justice resulted.'" Ibid. (citations omitted).
The "substantial deference [owed] to a trial court's evidentiary
rulings[,]" Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App.
Div. 1999) (quoting State v. Morton, 155 N.J. 383, 453 (1998)),
includes those "determining both the relevance of the evidence to
be presented and whether its probative value is substantially
outweighed by its prejudicial nature." Green v. N.J. Mfrs. Ins.
Co., 160 N.J. 480, 492 (1999) (citing State v. Carter, 91 N.J. 86,
106 (1982)).
At the outset, we reject plaintiff's contention that if
parties to a litigation stipulated to certain evidence, a trial
13 A-3815-15T3
judge is prevented from exercising his or her obligations as
"gatekeeper" and excluding the proffered evidence. While N.J.R.E.
101(a)(4) provides that if "no bona fide dispute between the
parties [exists] as to a relevant fact, the judge may permit that
fact to be established by stipulation or binding admission[,]" in
civil actions, the proffered evidence is still subject to exclusion
under N.J.R.E. 403. However, a party losing the benefit of
stipulated evidence must still receive his or her day in court
with respect to the stipulated issue. "[T]he litigant who is
being prejudiced by the court's non-adherence to the stipulation
[should] be given the same opportunity to present his[ or her]
proofs as he[ or she] would have received had the stipulation not
been entered on the record." Negrotti v. Negrotti, 98 N.J. 428,
433 (1985).
Here, plaintiff attempted to introduce the audit file through
a stipulation to show that she "reasonably believed" that
defendants were violating the wage and hour laws and to prove
causation between plaintiff's whistle-blowing activity and her
termination. Because of the alleged stipulation, plaintiff did
not call Pope as a witness. When the trial judge objected to the
documents being admitted, defendants disputed that a stipulation
existed and argued plaintiff mischaracterized the parties'
14 A-3815-15T3
agreement. They claimed they never stipulated to the admission
of the documents "for the truth of the matter asserted therein."
We need not resolve the dispute about whether there was a
stipulation as we conclude that even if defendants had agreed to
the audit file's admission, the trial judge was not obligated to
enter it into evidence if he properly determined that it was
otherwise inadmissible. Having reached that conclusion, we
address whether the trial judge abused his discretion by refusing
to admit the proffered documents.
Plaintiff argues that the trial judge erred in excluding the
balance of the audit file because it was relevant to the first and
fourth prongs of her CEPA claim and not unduly prejudicial. We
must consider her argument in light of the legislative intent
behind CEPA and plaintiff's burden of proof.
"[T]he legislative purpose animating CEPA is . . . to
'protect and encourage employees to report illegal or unethical
workplace activities and to discourage public and private sector
employers from engaging in such conduct.'" Lippman v. Ethicon,
Inc., 222 N.J. 362, 378 (2015) (quoting Abbamont v. Piscataway
Twp. Bd. of Educ., 138 N.J. 405, 431 (1994)). Because it is
remedial legislation, courts are to construe the statute
"liberally to achieve its remedial purpose." Barratt v. Cushman
15 A-3815-15T3
& Wakefield of N.J., Inc., 144 N.J. 120, 127 (1996) (citing
Abbamont, 138 N.J. at 431).
In pertinent part, the statute provides:
An employer shall not take any retaliatory
action against an employee because the
employee does any of the following:
. . . .
c. Objects to, or refuses to participate in
any activity, policy or practice which the
employee reasonably believes:
(1) is in violation of a law, or a rule or
regulation promulgated pursuant to law,
including any violation involving deception
of, or misrepresentation to, any shareholder,
investor, client, patient, customer,
employee, former employee, retiree or
pensioner of the employer or any governmental
entity; or
(2) is fraudulent or criminal, including any
activity, policy or practice of deception or
misrepresentation which the employee
reasonably believes may defraud any
shareholder, investor, client, patient,
customer, employee, former employee, retiree
or pensioner of the employer or any
governmental entity . . . .
[N.J.S.A. 34:19-3(c)(1) to (2).]
Prohibited retaliatory action includes an employee's
suspension from or termination of his or her employment. N.J.S.A.
34:19-2(e); Donelson v. DuPont Chambers Works, 412 N.J. Super. 17,
29 (App. Div. 2010), rev'd on other grounds, 206 N.J. 243 (2011).
16 A-3815-15T3
To establish a CEPA violation, a plaintiff must demonstrate
that:
(1) he or she reasonably believed that his or
her employer's conduct was violating either a
law, rule, or regulation promulgated pursuant
to law, or a clear mandate of public policy;
(2) he or she performed a "whistle-blowing"
activity described in [N.J.S.A.] 34:19-3(c);
(3) an adverse employment action was taken
against him or her; and
(4) a causal connection exists between the
whistle-blowing activity and the adverse
employment action.
[Lippman, 222 N.J. at 380 (citations
omitted).]
A plaintiff who brings a CEPA claim is not required to show
that his or her employer's conduct was actually fraudulent. See
Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003). Rather, "the
plaintiff simply must show that he or she 'reasonably believes
that to be the case.'" Ibid. (quoting Estate of Roach v. TRW,
Inc., 164 N.J. 598, 613 (2000)).
Determining whether the audit file should have been admitted
depends first upon whether it was relevant to plaintiff meeting
the requirements for proving her CEPA claim. "Our analysis of the
trial [judge]'s evidentiary ruling begins with the question of
relevancy, 'the hallmark of admissibility of evidence.'" Griffin,
225 N.J. at 413 (quoting State v. Darby, 174 N.J. 509, 519 (2002)).
17 A-3815-15T3
Relevant evidence is defined as evidence that has "a tendency in
reason to prove or disprove any fact of consequence to the
determination of the action." Ibid. (quoting N.J.R.E. 401).
Here, neither defendants nor the trial judge ever challenged
the relevancy of the audit files or their admissibility as business
records.5 We agree that the file's relevancy was established by
its "logical connection between the proffered evidence and a fact
in issue[,]" ibid. (alteration in original) (quoting Green, 160
N.J. at 492), specifically whether plaintiff reasonably believed
her employer engaged in fraudulent wrongful labor practices and
whether she was terminated for reporting Toyota Universe's
practices. However, even where there is some logical relevancy,
the judge must rely on his or her "own experience, his [or her]
general knowledge, and his [or her] understanding of human conduct
and motivation" before admitting evidence. State v. Allison, 208
N.J. Super. 9, 17 (App. Div. 1985) (citation omitted). "[R]elevant
evidence may be excluded if its probative value is substantially
outweighed by the risk of (a) undue prejudice, confusion of issues,
or misleading the jury or (b) undue delay, waste of time, or
needless presentation of cumulative evidence." N.J.R.E. 403; see
also Griffin, 225 N.J. at 420.
5
See N.J.R.E. 803(c)(6).
18 A-3815-15T3
We consider, therefore, the judge's determination that the
evidence was unduly prejudicial, warranting its exclusion under
N.J.R.E. 403. The burden is on "[t]he party seeking the exclusion
of the evidence [to] demonstrate that one or more of the factors
listed in N.J.R.E. 403 substantially outweighs the probative value
of the evidence." Griffin, 225 N.J. at 420 (citations omitted).
In general, "[e]vidence claimed to be unduly prejudicial is
excluded only when its 'probative value is so significantly
outweighed by [its] inherently inflammatory potential as to have
a probable capacity to divert the minds of the jurors from a
reasonable and fair evaluation' of the issues in the case." Id.
at 421 (alteration in original) (citations omitted). "[W]hen a
party challenges the admission of evidence under N.J.R.E. 403, the
question is not whether the challenged testimony will be
prejudicial to the objecting party, 'but whether it will be
unfairly so.'" Ibid. (emphasis added) (citations omitted).
"[E]vidence that has overwhelming probative worth may [still] be
admitted even if highly prejudicial." Rosenblit v. Zimmerman, 166
N.J. 391, 410 (2001) (quoting Green, 160 N.J. at 496).
A finding that probative evidence is prejudicial does not
necessarily warrant exclusion if a limiting instruction under
19 A-3815-15T3
N.J.R.E. 1056 would minimize its potential undue prejudice, and
address a court's concern about confusing a jury. See State v.
Cole, 229 N.J. 430, 455 (2017) ("[T]otal exclusion of evidence is
error where prejudice can be minimized through limiting
instructions or other means[.]" (citing Ocasio v. Amtrak, 299
N.J. Super. 139, 159-60 (App. Div. 1997))).
Here, the trial judge did not consider any limiting
instruction and excluded the file, because "to put the entire
content of the audit file[], before this jury, would . . . have
unduly confused the issues, [and] would have been extremely
prejudicial." He reached that conclusion without ever discussing
how probative the audit file was to plaintiff's claim and whether,
despite its probative value, it remained "undu[ly]
prejudice[ial]," as contemplated by N.J.R.E. 403, so as to warrant
exclusion, rather than admission subject to a limiting
instruction. The audit file was clearly prejudicial as it
6
The Rule provides:
When evidence is admitted as to one party or
for one purpose but is not admissible as to
another party or for another purpose, the
judge, upon request, shall restrict the
evidence to its proper scope and shall
instruct the jury accordingly, but may permit
a party to waive a limiting instruction.
[N.J.R.E. 105.]
20 A-3815-15T3
supported plaintiff's claim that she had a reasonable belief that
Toyota Universe was violating labor laws or regulations, but
without weighing the audit file's probative value against its
prejudicial effect, the trial judge mistakenly exercised his
discretion in excluding it based solely on its prejudicial nature.
Because the trial judge improperly barred the admission of
the balance of the audit file, we conclude that he erred in denying
plaintiff's motion for a new trial under Rule 4:49-1. The judge
denied this motion stating that plaintiff had "enough evidence"
to prove her claims, and reiterated that his exclusion of the
audit file was because it was unduly prejudicial and would confuse
the jury. He reasoned that he did not "know why the jury rendered
the verdict that it did" but that "there was certainly enough"
evidence for the jury to make its determination.
Rule 4:49-1(a) provides that a trial court shall grant 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." "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
21 A-3815-15T3
denial of justice.'" Risko v. Thompson Muller Auto. Grp., Inc.,
206 N.J. 506, 521 (2011) (quoting Baxter v. Fairmont Food Co., 74
N.J. 588, 597-98 (1977)); Boryszewski v. Burke, 380 N.J. Super.
361, 391 (App. Div. 2005) ("Jury verdicts should be set aside in
favor of new trials only with great reluctance, and only in cases
of clear injustice." (citing Crego v. Carp, 295 N.J. Super. 565,
577 (App. Div. 1996))). Furthermore, on a motion for a new trial,
and on appeal from same, "all reasonable inferences must be drawn
in favor of upholding the" jury's decision, and all evidence
supporting that decision must be accepted as true. Boryszewski,
380 N.J. Super. at 391 (citing Harper-Lawrence, Inc. v. United
Merchs. & Mfrs., Inc., 261 N.J. Super. 554, 559 (App. Div. 1993)).
In reviewing a trial court's decision on a motion for a new
trial, we "afford 'due deference' to the trial court's 'feel of
the case,' with regard to the assessment of intangibles, such as
witness credibility." Jastram v. Kruse, 197 N.J. 216, 230 (2008)
(quoting Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984)). We
will, however, reverse a trial judge's denial of a motion for new
trial where "it clearly appears that there was a miscarriage of
justice under the law." R. 2:10-1.
Guided by these principles, we cannot conclude that here
plaintiff received a fair trial in light of the judge's mistaken
exclusion of the audit file, which would have established an
22 A-3815-15T3
element of plaintiff's CEPA claim. We are therefore constrained
to reverse the denial of plaintiff's motion for a new trial, vacate
the judgment dismissing plaintiff's complaint and remand for a new
trial.
Reversed in part, vacated in part and remanded for a new
trial. We do not retain jurisdiction.
23 A-3815-15T3