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In Davis, the court referenced another New Jersey case wherein it was observed there was "no principled reason for permitting ex parte communications concerning the jury's deliberations once a verdict has been rendered and the jury discharged."
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DOCKET NO. A-2691-11T2
03-13-2013
TOMIKIA DAVIS, Plaintiff-Respondent/Cross-Appellant, v. DR. ABEZ HUSAIN, Defendant-Appellant/Cross-Respondent.
Mark J. Molz argued the cause for appellant/cross-respondent. Deborah L. Mains argued the cause for respondent/cross-appellant (Costello & Mains, P.C., attorneys; Ms. Mains, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Alvarez, and Waugh.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5893-07.
Mark J. Molz argued the cause for appellant/cross-respondent.
Deborah L. Mains argued the cause for respondent/cross-appellant (Costello & Mains, P.C., attorneys; Ms. Mains, on the brief). PER CURIAM
Plaintiff Tomikia Davis and defendant Abez Husain, M.D., appeal the December 23, 2011 judgment entered by the Law Division following a jury trial of Davis's claims against Husain, which were brought under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. We affirm as to liability and damages, but remand for further consideration of the award of counsel fees consistent with this opinion.
I.
We discern the following facts and procedural history from the record on appeal.
Davis worked for Mira Kheny, M.D., for approximately sixteen months during 2005 and 2006. She served primarily as Kheny's medical assistant.
Kheny rented medical-office space from Husain, who maintained a separate medical practice in the same building. While Davis was working for Kheny, she cleaned Husain's office approximately ten or twelve times when his regular cleaner was unavailable.
Davis testified that, after she had been working for Kheny for six or seven months, Husain approached her and asked for her help finding a date. According to Davis, he told her "he liked women with big breasts." Davis replied that she did not help people find dates and walked away without giving Husain "a chance to say anything" further. Davis also testified that, a few months later, Husain made another comment about breasts. She tried to avoid him following the second incident.
According to Davis, while Husain's girlfriend was visiting the office in January or February 2006, he made another unsolicited comment regarding the difference between the vaginal moisture of women of different ethnicities. Davis testified that she found it "humiliating and it scared me again because this was the third time. I just didn't know what to do." She continued her attempts to avoid Husain.
Finally, Davis testified that Husain touched her inappropriately without her consent in June 2006. Davis was filing papers at the end of her shift when she felt Husain's hand on her buttocks. She "turned around and . . . told him not to do that," to which he responded, "calm down, we play like that." She replied, "I don't play like that." She was very upset and packed up to leave the office for the day. Davis described the incidents as "not something I asked for" because she "never started [any] of these conversations."
Husain testified that he never made any inappropriate comments to Davis. He also denied having ever touched her.
Davis's employment with Husain and with Kheny was terminated after these incidents, allegedly because Davis complained about her treatment.
Davis filed a complaint against Kheny and Husain in November 2007. She alleged LAD violations based on hostile work environment, sexual harassment, and retaliation. N.J.S.A. 10:5-12(a), (d). Both defendants filed answers. Kheny eventually settled with Davis.
The trial took place over six trial days in August 2011. Davis dismissed her retaliation claim against Husain during the voir dire conference, and made an in-limine motion to exclude evidence of her settlement with Kheny and her conviction in the 1990s for a drug offense. The trial judge held that Davis's settlement with Kheny would not be admissible, subject to reconsideration in light of the actual testimony at trial. He also decided that the conviction could not be used for impeachment because it would be unduly prejudicial and had no bearing on the credibility of Davis's testimony.
The judge excluded testimony about the settlement based on Davis's abandonment of her claim against Husain for retaliatory discharge and lost wages. During her testimony, however, Davis mentioned lost wages.
[H]e made me feel real uncomfortable. I trusted him, like that's why I worked with him on a shift that nobody was there, so I feel like he needs to be accountable for his actions. He made me lose wages, though I'm not here for that, but that sent me into stress.The judge called counsel to sidebar, and instructed Davis's attorney to "handle the testimony that he made me lose wages." The attorney did so by asking Davis whether it was correct that she was not making a lost wage claim in the case and whether it was "absolutely not" an issue. Davis answered in the affirmative.
I just moved into a three bedroom home with my children. And he shouldn't be able to do it to nobody else. It's just not fair. So it shouldn't go unheard, you know,
unseen. This is something he did and like I said, I didn't ask for it, so that's why I'm here today.
Before cross-examining Davis, Husain moved for a mistrial, or alternatively for permission to refer to the settlement with Kheny. The judge observed that Davis's testimony might also have "open[ed] the door" with regard to the admissibility of the criminal conviction. However, the judge denied Husain's motion, and determined that testimony regarding the criminal conviction was still too prejudicial and unrelated to be admissible.
Husain moved for a directed verdict at the close of Davis's case. The judge denied the motion, concluding that Davis had presented a prima facie case. The judge also denied Husain's request that he charge the jury on proximate cause. In addition, he denied Davis's request that he charge the jury on punitive damages if Davis succeeded in recovering compensatory damages.
The jury found in favor of Davis and awarded her damages of $12,500.
After the verdict was delivered, the trial judge spoke with the jurors off the record and without counsel present. One juror commented that Husain had not touched the Bible when he took the oath before testifying. The judge informed the attorneys about the juror's comment in an off-the-record conversation in chambers.
Husain filed a motion for remittitur. He also raised the issue of the juror's observation, but did not move for a new trial on that basis. Husain, who is of Indian descent, certified that he did not touch the Bible because he did not wish to disrespect a holy book by placing his left hand on it. The judge denied Husain's request for remittitur. He also said he saw no basis for a new trial, but told defense counsel he could file a separate motion on that issue. No such motion was filed. Davis renewed her request for a trial on punitive damages, which was also denied.
The judge then addressed Davis's motion for attorney's fees. Davis's attorney requested $500 per hour for himself, $375 per hour for his partner, and $250 per hour for an associate. He also requested enhancement of the fees based on the public policy underlying the LAD and on the risk of nonpayment due to taking the case on contingency. The judge established trial counsel's fee at $375 per hour, his partner's at $300 per hour, and the associate's at $175 per hour. The judge concluded that the number of hours billed was reasonable and calculated the lodestar amount to be $68,095, but denied counsel's request for enhancement of the lodestar.
This appeal followed.
II.
Husain argues on appeal that the trial judge erred in (1) excluding the settlement with Kheny and precluding cross-examination concerning Davis's criminal conviction, (2) denying his motion for a mistrial after Davis mentioned lost wages in her testimony, (3) denying his motion for a directed verdict after the close of Davis's case, (4) refusing to charge proximate cause, (5) refusing to apportion liability between Husain and Kheny, and (6) failing to declare a mistrial on the basis of the juror's comment about Husain and the Bible.
In her cross-appeal, Davis argues that the trial judge erred in (1) dismissing her claim for punitive damages, (2) reducing the hourly rates used to calculate the lodestar amount for counsel fees, and (3) declining to enhance the lodestar.
A.
We start our analysis with the judge's evidentiary rulings, as well as the subsequent denial of Husain's motion for a mistrial on the issue of lost wages.
Our scope of review of a trial judge's evidential rulings requires that we grant substantial deference to the judge's exercise of discretion. DeVito v. Sheeran, 165 N.J. 167, 198 (2000). Rulings on evidence will not provide a basis for reversal unless they reflect an abuse of that discretion. Benevenga v. Digregorio, 32 5 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Reversal is not warranted unless the trial judge's ruling was "so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).
i.
Husain argues that the judge erred in precluding him from using Davis's 1997 criminal conviction for drug offenses for impeachment purposes.
We need not address the issue raised with respect to whether Davis failed to disclose the criminal conviction in her interrogatory answers because we agree with the trial judge that the interrogatory question at issue did not clearly request that information.
N.J.R.E. 609 provides that, "[f]or the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes." The rule is one of inclusion. See State v. Harris, 209 N.J. 431, 442 (2012). The decision to admit such evidence is within the trial judge's discretion, and will only be reversed if the judge abused that discretion. Id. at 439-441; State v. Sands, 76 N.J. 127, 140-41, 144 (1978).
The party opposing the introduction of a witness' prior conviction has the burden of demonstrating that it should be excluded. Harris, supra, 209 N.J. at 442. "The key to exclusion is remoteness." Id. at 441 (quoting Sands, supra, 76 N.J. at 144). To determine whether a conviction is remote, and therefore unduly prejudicial, the trial court must consider the age of the prior conviction, as well as "intervening convictions between the past conviction and the crime for which the defendant is being tried." Sands, supra, 76 N.J. 144-45. The nature of the earlier offense is also a "significant factor." Id. at 144. "Serious crimes, including those involving lack of veracity, dishonesty or fraud, should be considered as having a weightier effect" than other types of crimes. Ibid.
The conviction at issue took place in 1997 and did not involve criminal activity implicating truthfulness, dishonesty, or fraud. We see no abuse of the judge's discretion in his determination that the prejudice of the 1997 drug conviction would outweigh the conviction's probative value for impeachment purposes.
ii.
Husain also argues that the judge erred in prohibiting introduction of Davis's settlement with Kheny and that he compounded the error when he denied the motion for a mistrial after Davis mentioned lost wages during her testimony.
Davis settled with Kheny, who had been her primary employer at the time of the incidents at issue. Davis subsequently dismissed her claim against Husain for retaliatory discharge. The judge did not abuse his discretion in dismissing the claim or excluding evidence of the settlement once Davis was no longer claiming retaliatory discharge or seeking damages for lost wages from Husain.
Clearly, Davis should not have mentioned lost wages in her testimony. Once she did and Husain moved for a mistrial or permission to introduce the Kheny settlement, the judge had to take some remedial action. He had at least three choices: a mistrial, introduction of the settlement, or curative action. The judge had already taken the curative approach immediately after the testimony was given and even before the motion was made.
The decision to grant or deny a motion for mistrial is reviewed for abuse of discretion. McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 376 (2001). A mistrial is an extraordinary remedy that should be used only to prevent a manifest injustice. State v. Winter, 96 N.J. 640, 647-48 (1984). We find no abuse of discretion in the judge's decision to require Davis's counsel to cure the problem by examining Davis and establishing that she was not seeking lost wages.
That cure also took care of any prejudice that might have resulted from Davis's attorney mentioning in his opening statement that one of the complained-of incidents occurred shortly before Davis left her employment.
Lost wages were not argued during summations and the judge specifically stated in his charge to the jury that "[t]here was no wage loss." The fairly modest amount of the damage award strongly suggests that the jury did not include lost wages in the damage award. Consequently, there was no manifest injustice requiring a mistrial.
B.
We now turn to Husain's argument that the trial judge erred in denying his motion for a directed verdict at the end of Davis's case.
Our review of a trial judge's ruling on a motion for directed verdict pursuant to Rule 4:40-1 is de novo. Boyle v. Ford Motor Co., 399 N.J. Super. 18, 40 (App. Div.), certif. denied, 196 N.J. 597 (2008). Like the trial judge, we "must accept as true all the evidence which supports the position of the non-moving party, according him or her the benefit of all legitimate inferences." RSB Lab. Servs., Inc. v. BSI, Corp., 368 N.J. Super. 540, 555 (App. Div. 2004); see also Verdicchio v. Ricca, 179 N.J. 1, 30 (2004); Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). If reasonable minds could differ as to the outcome, the motion must be denied. Verdicchio, supra, 179 N.J. at 30.
"It shall be an unlawful employment practice, or . . . an unlawful discrimination . . . [f]or an employer, because of the . . . sex . . . of any individual . . . to discriminate against such individual in compensation or in terms, conditions or privileges of employment." N.J.S.A. 10:5-12(a). New Jersey employs a four-part test to determine whether a hostile work environment/sexual harassment cause of action exists:
[T]he complained-of conduct (1) would not have occurred but for the employee's gender; and it was (2) severe or pervasive enough to make a (3) reasonable woman believe that (4) the conditions of employment are altered and the working environment is hostile or abusive. However, the second, third, and fourth prongs, while separable to some extent, are interdependent. One cannot inquire whether the alleged conduct was "severe or pervasive" without knowing how severe or pervasive it must be. The answer to that question lies in the other prongs: the conduct must be severe or pervasiveThe "but-for element," the first prong, "will automatically be satisfied" if "the harassing conduct is sexual or sexist in nature." Id. at 605. Such conduct includes "sexual touchings or comments." Ibid.; Velez v. City of Jersey City, 358 N.J. Super. 224, 234 (App. Div. 2003), aff'd, 180 N.J. 284 (2004).
enough to make a reasonable woman believe that the conditions of employment are altered and her working environment is hostile.
[Lehmann v. Toys 'R' Us, 132 N.J. 587, 603-04 (1993) (emphasis added).]
The second, third, and fourth prongs of the test are distinguishable but interdependent, and therefore must be discussed together. Lehmann, supra, 132 N.J. at 604. In determining whether conduct was severe or pervasive, the judge must consider the cumulative effect of the conduct, not just isolated instances of conduct. Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 196 (2008); Lehmann, supra, 132 N.J. at 607. This requires an assessment of the totality of the circumstances, in which the judge should consider "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Cutler v. Dorn, 196 N.J. 419, 432 (2008) (quoting Green v. Jersey City Bd. of Educ, 177 N.J. 434, 477 (2003)) (internal quotation marks omitted).
Evaluation of whether conduct gave rise to a "hostile work environment" should focus on "the harassing conduct itself, . . . 'not its effect on the plaintiff.'" Godfrey, supra, 196 N.J. at 196 (quoting Lehmann, supra, 132 N.J. at 606). "[N]either a plaintiff's subjective response to the harassment, nor a defendant's subjective intent," controls whether a hostile work environment exists. Cutler, supra, 196 N.J. at 431 (internal quotation marks omitted) (citing Lehmann, supra, 132 N.J. at 604-05, 613).
A hostile work environment most frequently results from a series of inappropriate events or misconduct. See Taylor v. Metzger, 152 N.J. 490, 499-500 (1998). While a single incident of harassing conduct may create a hostile work environment, "it will be a rare and extreme case in which a single incident will be so severe that it would, from the perspective of a reasonable [person situated as the claimant], make the working environment hostile." Id. at 500 (alteration in original) (quoting Lehmann, supra, 132 N.J. at 606-07) (internal quotation marks omitted).
Because we must view the evidence in the light most favorable to Davis, we must assume that Husain made the comments about dating women with big breasts and the vaginal moisture of different ethnicities, and also that he touched Davis's buttocks with his hand and told her that "we play like that." Based upon those facts, we conclude that a reasonable jury could find that each of the Lehmann prongs was satisfied. Each statement or act was sexual in nature, thereby satisfying the first prong. Taken together, they were sufficiently pervasive and their escalation from the mention of breasts and vaginal moisture to an unwanted touching of the buttocks demonstrated sufficient severity. The alleged conduct was both verbal and physical, and offensive on its face. From the objective perspective of a reasonable woman, it was sufficiently inappropriate and demeaning to alter Davis's work environment. We note in that regard Davis's assertion that, after Husain touched her and she objected, he told her "calm down, we play like that." Assuming, as we must, that Husain made that statement, it was, in essence, telling Davis that such comments were part of her work environment. Because "the hostile work environment is the legally recognized harm," Lehmann, supra, 132 N.J. at 610, Davis was not required to show economic loss or psychological harm.
C.
We now turn to issues related to the jury charge. Husain argues that the judge should have charged proximate cause, while Davis argues that the judge should have charged punitive damages.
We have reviewed both arguments in light of the facts of this case and the applicable law. We find them to be without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.
Davis's claims were brought under the LAD. Proximate-cause charges and related questions on the verdict sheet are not used in such cases. Baliko v. Int'l Union of Operating Eng'rs, Local 825, 322 N.J. Super. 261, 277-79 (App. Div.) ("[U]tilizing a proximate cause factor in the jury instruction was error; so too was the inclusion of a proximate element in the jury questionnaire."), certif. denied, 162 N.J. 199 (1999). In addition, because the claims against Kheny and Husain were different, a retaliatory discharge as opposed to a hostile work environment, there was no basis to apportion the damages.
With respect to punitive damages, although we have held that the conduct attributed to Husain rose to the level of creating a hostile workplace for the purposes of the LAD, we agree with the trial judge that it did not warrant consideration of punitive damages after the jury returned a verdict on compensatory damages.
There are two prerequisites for awarding punitive damages to an employee in a discrimination suit: "(1) actual participation in or willful indifference to the wrongful conduct on the part of upper management and (2) proof that the offending conduct [is] especially egregious." Cavuoti v. N.J. Transit Corp., 161 N.J. 107, 113 (1999) (alteration in original) (internal quotation marks omitted). Although Davis established the first prerequisite, we are satisfied that there was insufficient evidence of especially egregious conduct to warrant presentation of the issue to the jury.
D.
We next turn to the issue of counsel fees. Davis argues that the judge erred in cutting the hourly rate used to calculate the lodestar, and then in failing to award a fee enhancement.
In the companion cases Rendine v. Pantzer, 141 N.J. 292 (1995), and Szczepanski v. Newcomb Medical Center, 141 N.J. 346 (1995), the Supreme Court addressed the calculation of attorney's fees payable under fee-shifting statutes to the prevailing party. The Court explained that the trial judge must first "determine the 'lodestar': the number of hours reasonably expended multiplied by a reasonable hourly rate." Rendine, supra, 141 N.J. at 334-35. This requires evaluating "carefully and critically the aggregate hours and specific hourly rates advanced by counsel for the prevailing party." Id. at 335. Time not reasonably expended should be excluded. Ibid. The hourly rate typically must "be calculated according to the prevailing market rates in the relevant community." Id. at 337 (quoting Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)).
The Court also addressed the relationship between the attorney's fees and the amount of damages recovered. Id. at 336. The Court noted the United States Supreme Court has held that, "although damages recovered [are] a factor bearing on the reasonableness of counsel-fee awards, federal fee-shifting statutes [do] not require proportionality between damage recoveries and counsel-fee awards . . . ." Ibid. (quoting City of Riverside v. Rivera, 477 U.S. 561, 574, 106 S. Ct. 2686, 2694, 91 L. Ed. 2d 466, 479 (1989)). The Court "reject[ed] . . . a proportionality rule under [New Jersey's] fee-shifting statutes." Szczepanski, supra, 141 N.J. at 366; see also Rendine, supra, 141 N.J. at 336. Nevertheless, where "the fee requested is disproportionate to the damages recovered," the judge has a "heightened" duty to evaluate thoroughly the requested lodestar fee and confirm that the hours included were "reasonably expended." Szczepanski, supra, 141 N.J. at 366. The evaluation should weigh "the damages prospectively recoverable and actually recovered," "the interest to be vindicated in the context of the statutory objectives," and "any circumstances incidental to the litigation that directly or indirectly affected the extent of counsel's efforts." Id. at 366-67.
After determining the lodestar, the trial judge must consider whether an enhancement is appropriate "to reflect the risk of nonpayment in all cases in which the attorney's compensation entirely or substantially is contingent on a successful outcome." Rendine, supra, 141 N.J. at 337. This determination hinges on "the actual risks or burdens that are borne by the lawyer or lawyers." Id. at 339-40 (quoting Pa. v. Del. Valley Citizens' Council for Clean Air, 483 U.S. 711, 747, 107 S. Ct. 3078, 3098, 97 L. Ed. 2d 585, 612 (1987) (Blackmun, J., dissenting)). An enhancement may not be appropriate under certain circumstances, such as where an attorney is paid a portion of his or her hourly fee regardless of results; where the damages sought are so substantial that the contingent fee could exceed the lodestar amount; or where "the likelihood of success is unusually strong." Id. at 340-41.
Ordinarily, the amount of a contingency enhancement "should range between five and fifty-percent of the lodestar fee, with the enhancement in typical contingency cases ranging between twenty and thirty-five percent of the lodestar." Id. at 343. In no case should an enhancement "exceed one-hundred percent of the lodestar." Ibid.
Recently, the Court reiterated "that the mechanisms for awarding fees, including contingency enhancements, that we adopted in Rendine shall remain in full force and effect as the governing principles for attorneys' fee awards made pursuant to fee-shifting provisions in our state statutes and rules." Walker v. Giuffre, 209 N.J. 124, 129 (2012). A fee award applying these standards will not be disturbed absent a clear abuse of discretion. Romano v. Galaxy Toyota, 399 N.J. Super. 470, 485 (App. Div.), certif. denied, 196 N.J. 344 (2008). Such deference requires a cogent statement of reasons in support of the fee award. Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 21 (2004). This statement must demonstrate recognition and application of the governing standards to the unique facts of the case. See id. at 21-24; see also Walker, supra, 209 N.J. at 148 (affirming need for trial judges to sufficiently address Rendine factors to permit review of contingency enhancement).
Although the trial judge's oral decision adequately explained why he reduced the hourly fees for Davis's attorneys and his determination that the time spent was reasonable, we have concluded that he did not adequately consider, or at least explain his reasoning concerning, the risk of non-payment and that he may have placed too much reliance on the relationship between the amount of the recovery and the fee award. Consequently, we vacate the portion of the judgment declining to award a fee enhancement and remand for further consideration in accordance with this opinion. We do not express any opinion on what the results of the remand should be.
E.
Finally, we address Husain's arguments concerning the remarks made by the juror during the judge's informal discussion following the trial.
It appears from the record that, after the trial was completed, the judge went into the jury room without counsel and spoke to the jurors off the record. One of the jurors commented that Husain had not touched the Bible when he took the oath before testifying. According to the judge, none of the other jurors reacted or addressed the issue. The judge subsequently disclosed the comment to trial counsel off the record and "in confidence." Neither counsel requested the judge to interview the juror on the record to determine the import, if any, of the juror's comment, and the judge did not do so sua sponte.
Husain explained in his post-trial certification that (1) his cultural upbringing was that the left hand should not be placed on holy books, and (2) because the courtroom had a Bible and a Koran, he was confused and not sure which was being offered to him.
However, Husain raised the issue in connection with his remittitur motion, certifying that his failure to put his hand on the Bible was based upon his cultural upbringing. During oral argument, the judge told Husain's counsel that he was "surprised that comment that I made out of my continuing concern for education winds up in a brief in a certification."
We pause to express our strong disapproval of judges who speak to jurors in cases that have been tried to conclusion, as opposed to cases that have been settled or mistried during trial. Such communications run the significant risk that one or more jurors will say something that then becomes an issue with respect to the verdict reached, as happened here. In Ertle v. Starkey, 2 92 N.J. Super. 1, 7 (App. Div. 1996), we expressed the view that "trial judges should refrain from such interaction in the future so as to avoid the type of allegations of judicial bias that have been made in this appeal or other claimed grounds for appeal." We addressed the issue again in State v. Walkings, 388 N.J. Super. 149, 158-59 (App. Div. 2006), where we observed that "we [saw] no principled reason for permitting ex parte communications concerning the jury's deliberations once a verdict has been rendered and the jury discharged." See also In re Mathesius, 188 N.J. 496, 503-04 (2006).
We are totally unimpressed with this trial judge's suggestion that he was engaging in his "continuing responsibility to educate [him]self and educate the bar." The judge's conduct demonstrated the soundness of our warning in Ertle that such interactions should be avoided.
The trial judge took no steps to ascertain whether the juror's observation improperly influenced the jury's verdict, nor did he make a record with respect to the incident. Although he disclosed the conversation to counsel, he did so only off the record and without offering counsel the opportunity to explore it further. Indeed, the judge subsequently took offense that defense counsel raised it in connection with his post-trial motion.
Such a communication from the judge to counsel cannot be considered "confidential." An attorney's overarching obligation to the client compels the attorney to take appropriate action for the client's benefit. The attorney should not have been made to feel that, in doing so, he had breached a confidence imparted by the judge.
Husain argues that the juror's comment about his not having placed his hand on the Bible warrants a new trial, but does not clearly articulate a legal basis for that assertion. He does not specifically contend that the juror's observation reflected a discriminatory animus, such as one based upon race, national origin, or religion. Instead, he more generally contends that the juror may have considered his testimony less credible because he did not touch the Bible.
Having reviewed the record carefully, we conclude that the comment attributed to the juror does not warrant our setting aside a jury verdict that we have concluded was otherwise appropriately supported by the evidence following a fair trial.
First, the remark was not on its face discriminatory or indicative of invidious discrimination. It was an observation of a fact as to which there is no dispute. We see no basis in the record to assume that the juror's comment was reflective of invidious discrimination. Second, no juror indicated to the trial judge that Husain's failure to touch the Bible adversely influenced his or her decision on the issue of credibility, including the juror who made the comment. Third, the trial judge expressed his opinion, based on his observation of the entire trial and on the quite modest amount of the damage award, that the jury's verdict was consistent with the facts presented during the trial. Fourth, there was no contemporaneous request by defense counsel that the juror be questioned. Finally, although the issue was mentioned in connection with the remittitur motion, there was no specific motion for a new trial based on the juror's statement and no request that the juror or jury be recalled and questioned about the issue. Although the judge's comments suggest that he was not inclined to grant such an application, he specifically gave defense counsel the option to file one.
Granting a new trial is an extraordinary remedy that, in the absence of significant trial error, is utilized only to prevent a manifest injustice under the circumstances. See Winter, supra, 96 N.J. at 648. To the extent our dissenting colleague concludes that such extraordinary relief is warranted on the record before us, we are constrained to disagree with him.
III.
For all of the reasons set forth above, we affirm the judgment on appeal, except that we vacate that portion of the judgment that declined to award a fee enhancement and remand to the trial judge for further consideration of that issue consistent with this opinion.
Affirmed in part, remanded in part. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
FISHER, P.J.A.D, dissenting.
I concur with the majority's opinion in all respects except Section II(E) and, therefore, cannot join in the appeal's ultimate disposition. Indeed, even with regard to Section II(E), we are in accord in many respects. My colleagues have expressed their "strong disapproval of judges who speak to jurors in cases that have been tried to a conclusion" (slip op. at 22), and I agree with those comments. The judge either ignored or was unfamiliar with our prior condemnations of this practice in State v. Walkings, 388 N.J. Super. 149, 158-59 (App. Div. 2006), and Ertle v. Starkey, 292 N.J. Super. 1, 7 (App. Div. 1996), and my colleagues and I are in full agreement that the judge's post-verdict discussion should not have occurred.
I pause to also note my agreement with the majority's condemnation of the judge's criticism of counsel for unveiling the information the judge learned from the jury and provided to counsel in "confiden[ce]." Counsel had an absolute right to the information the judge improperly obtained through his ex parte communications with the jury, and counsel was obligated to his client to zealously pursue whatever avenue was available in light of that information.
In re Mathesius, 188 N.J. 496, 503-04 (2006) considered a judge's "discussion" with a criminal jury, unrecorded and outside the presence of counsel, after the jury rendered its verdict. Although the judge was charged with violating Canon 3A(6), the Court's ultimate disposition of the charges focused on the insulting and denigrating nature of the judge's diatribe.
The majority opinion accurately sets forth the events in question. To amplify a bit, the record reveals that after the jury rendered its verdict, the judge informed the jurors that they "have no obligation to speak to anybody about what you thought, what other people thought, what you said, what other people said." He also correctly observed there was "no prohibition" on their speaking about the case, but he also "advi[sed]" they should not "say anything" they "wouldn't be willing to be quoted on." Ironically, the judge additionally suggested to the jury that "what goes on in the Jury Room stays in the Jury Room." With that, he thanked the jurors for their service and advised them of his "practice" of speaking to jurors after the verdict to answer questions they may have had "about this process, about what you observed, about what you thought," and expressed his willingness to answer any questions they had "about . . . the nature of the trial." The judge then discharged the jury. No recording was made of what the judge later discussed with the discharged jurors.
We condemned this practice in Walkings, concluding there was "no principled reason for permitting" such a conversation between judge and jury. 388 N.J. Super. at 159. The panel in Ertle was likewise "of the view that trial judges should refrain from such interaction in the future." 292 N.J. Super. at 7. Although perhaps not necessary to this discussion, I would note my disagreement with Ertle's determination that the trial judge there did not violate Canon 3A(6) of the Code of Judicial Conduct, which directs that a judge may "neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding." The Ertle panel concluded there was no pending proceeding because "the jury had completely discharged its function" and "the case was over as far as it was concerned." 292 N.J. Super. at 7. I do not believe that whether the case was over for the jury is determinative of whether the case was over for everyone else. In other words, the jury verdict did not end the case. There was a pending proceeding -- or, at least, an impending proceeding -- because, as recounted in Ertle, the judge was well aware a motion for a new trial would be forthcoming even before he improperly conversed with the jury. When plaintiff's counsel sought permission to be present for the conversation, the judge refused because he "anticipat[ed] that the plaintiffs were going to move for a new trial." Id. at 6. In short, the judge in Ertle well knew the case was still pending, so Canon 3A(6) certainly governed -- and prohibited -- his ex parte communications.
Canon 3A(6) was triggered here as well, because even though the judge may not have had any particular reason to assume the filing of a post-judgment motion, there was no reason to assume there would not be such a filing in the future. In fact, a trial judge always has the authority to grant a new trial on his own initiative, R. 4:49-1(c), so it can never be said for certain that, at the time such post-verdict discussions occur, the case is no longer "pending" in the trial court. It is better for trial judges to assume -- as Yogi Berra once said -- "the game's not over until it's over."
Even if by some stretch we could view such an ex parte event as permissible, it is certainly a risky business. By engaging in this practice, a judge invites the inappropriate disclosure of things that may impact -- or give the appearance of impacting -- the proceedings to follow, such as, in a civil action, a motion for a new trial or a motion for a remittitur or additur, or in a criminal case, a motion for a new trial or the imposition of sentence. For example, in Walkings, we referred to Harris v. United States, 738 A.2d 269, 278-81 (D.C. App. 1999), where, during a similar conversation after a verdict in a murder trial, the judge learned the jury had compromised to reach a verdict on a lesser offense. Considering he had yet to pass sentence, the ex parte information possessed the potential to impact on the ultimate disposition of that case. The appellate court in Harris concluded "the trial judge engaged in improper ex parte communications about the proceeding in violation of Canon 3(A)(4)" of the ABA Model Code of Judicial Conduct, although the appellate court was ultimately satisfied the defendant was not prejudiced because the judge adamantly stated the ex parte information was not considered in the formulation of the defendant's sentence. Harris, supra, 738 A.2d at 280-81.
Canon 3(A)(6) of our Code of Judicial Conduct is identical to ABA Canon 3(A)(4).
Here, in inviting comments or questions about "what [the jury] observed," the judge obtained information from a juror that suggested she may have assessed defendant's credibility on an irrelevant factor, defendant's apparent unwillingness to place his hand on the Bible when swearing to tell the truth.
No witness is required to place a hand on the Bible when being sworn. All that is required is the witness's commitment to tell the truth out of fear of punishment, In re R.R., 7 9 N.J. 97, 110 (1979), not out of fear of "a vengeful [d]eity," State v. Caraballo, 330 N.J. Super. 545, 554 (App. Div. 2000). There is no doubt that defendant was properly sworn. Notwithstanding, we interpret -- from the little information provided regarding the unrecorded post-verdict discussion -- that this juror may have mistakenly thought defendant's reticence when confronted with a Bible was a sign of his unwillingness to tell the truth. In fact, as the majority observes, defendant, "who is of Indian descent, . . . did not touch the Bible because he did not wish to disrespect a holy book by placing his hand on it" (slip op. at 6).
This short trial largely consisted of a credibility contest between plaintiff and defendant. On the present record, there is no way of dismissing the possibility that the jury may have decided the credibility contest in favor of plaintiff by relying on a circumstance that had no bearing on defendant's credibility.
Other than plaintiff and defendant, only three other witnesses, all on defendant's behalf, testified.
To be sure, the record before us only contains the judge's statement on the record six weeks after what he said to counsel, during an unrecorded discussion, about what he (the judge) had heard during an unrecorded conversation with the jury after it rendered its verdict. The judge stated that the concern about defendant's manner of taking the oath was the statement of only one juror and there was no indication other jurors may have been influenced by that juror's concerns. But there was no evidentiary hearing as to what the juror said, whether other jurors had made the same observation and drawn the same conclusion, or whether the juror had shared her observation with the other jury members during deliberations. I would also think it is too late in the day -- the verdict having been rendered eighteen months ago -- to obtain meaningful answers if we were to remand for a hearing.
The question, then, is whether we should either assume -- without any supporting evidence -- that no harm was caused and affirm, or whether we should assume there likely was harm and require a new trial. I recognize that the latter choice is harmful to plaintiff, who has done no wrong, but I find more palatable the awarding of a new trial because it will ensure the rendering of a judgment based upon appropriate considerations or, at least, so there is an appearance that justice has been done in this case. Reversal may also better deter trial judges who continue to engage in this inappropriate practice despite Walkings and Ertle. And, because this was a very short trial, there will be no great harm to the efficient administration of justice if a new trial were ordered.
I note a number of unreported decisions that recognize Ertle and Walkings have not eradicated this practice. See Fusco v. Pyl, No. A-2734-08 (App. Div. May 25, 2010); Drody v. Plastic Surgery Arts, No. A-4116-06 (App. Div. Nov. 6, 2008); Leonardo v. Comfort Inn Victorian, No. A-2308-06 (App. Div. Apr. 8, 2008). It would also serve no further purpose to list the long line of reported decisions condemning judges' ex parte communications with deliberating juries to recognize that, with some trial judges, Canon 3A(6) appears to be honored more in the breach than in the observance.
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For these reasons, I would order a new trial.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION