Opinion
DOCKET NO. A-6035-11T9
06-09-2014
KATHLEEN WARRICK, Plaintiff-Appellant, v. PARSIPPANY-TROY HILLS BOARD OF EDUCATION, MICHAEL STRUMOLO, and HIAWATHA TOWING SERVICE, Defendants-Respondents.
Jon W. Green argued the cause for appellant (Green, Savits & Lenzo, LLC, attorneys; Mr. Green, of counsel and on the brief). Robert F. Gold argued the cause for respondent Parsippany-Troy Hills Board of Education (Gold, Albanese & Barletti, attorneys; Devin C. Villarosa, on the brief). James E. Polles argued the cause for respondents Michael Strumolo and Hiawatha Towing Service (Rogut McCarthy LLC, attorneys; Daniel J. McCarthy, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Sabatino and Sumners.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3523-09.
Jon W. Green argued the cause for appellant (Green, Savits & Lenzo, LLC, attorneys; Mr. Green, of counsel and on the brief).
Robert F. Gold argued the cause for respondent Parsippany-Troy Hills Board of Education (Gold, Albanese & Barletti, attorneys; Devin C. Villarosa, on the brief).
James E. Polles argued the cause for respondents Michael Strumolo and Hiawatha Towing Service (Rogut McCarthy LLC, attorneys; Daniel J. McCarthy, on the brief). PER CURIAM
This litigation arose out of the non-renewal of plaintiff Kathleen Warrick's employment contract as Transportation Coordinator for the Parsippany-Troy Hills School District ("the District"). Plaintiff's services were discontinued after she had expressed concerns about the safety of the District's school buses and complained about the quality of maintenance provided by the long-time private vendor that serviced the buses.
Plaintiff sued the Board of Education ("the Board"), contending that her loss of employment with the District violated the Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 to -14. Plaintiff additionally claimed that the bus maintenance company, Hiawatha Towing Service ("Hiawatha") and its owner, Michael Strumolo, tortiously interfered with her employment with the District, provoking the Board to terminate her.
Consistent with the parties' briefs and the record, we refer to Hiawatha and Strumolo interchangeably, unless the context indicates otherwise.
After considering the proofs in a liability-only trial, a jury rejected plaintiff's CEPA claims against the Board, but rendered a verdict in favor of plaintiff against Hiawatha and Strumolo on her tortious interference claim. However, before the trial proceeded to a damages phase, the court granted Hiawatha and Strumolo judgment notwithstanding the verdict ("JNOV"), concluding that the proofs were legally inadequate to support the jury's finding of tortious interference.
Plaintiff now appeals, contending that she is entitled to a new trial on her CEPA claims because of alleged trial errors. She further contends that the trial court awarded JNOV to the private defendants in error, and that the verdict in her favor on the tortious interference count should be reinstated. In addition, she seeks reversal of the trial court's interlocutory order denying her motion to strike an affirmative defense alleging that she failed to mitigate damages.
For the reasons that follow, we affirm the no-cause judgment entered in favor of the Board, but reverse the entry of JNOV on the tortious interference claim against the other defendants. The case is consequently remanded for a trial on damages solely as to Hiawatha and Strumolo, subject to updated supplemental discovery. On remand, the trial court shall give further consideration to the affirmative defense of non-mitigation, viewed in the fuller context of evaluating plaintiff's overall efforts to secure and maintain other employment up through the time of the forthcoming damages trial.
I.
The extensive record in this case reveals the following chronology of events pertinent to our analysis of the issues that plaintiff raises on appeal.
General Background
In August 2005, the Board hired plaintiff to serve as the District's Transportation Coordinator. Her responsibilities included managing an average annual budget of $5.2 million and overseeing a department that operated approximately 90 school bus routes, transporting some 5200 students within the District daily. Plaintiff reported directly to Marlene Wendolowski, the District's Business Administrator, who in turn reported to the Superintendent. Leroy Seitz, Ph.D., who testified at trial, became the Superintendent in October 2006, during plaintiff's second school year with the District.
During the relevant time frame, the District owned seven large school buses and nineteen smaller van-sized ones. Because that fleet was too small to fully service the large student population, the District contracted with third-party companies to supply additional buses used for daily transportation.
Hiawatha held the bus maintenance contract with the District for over three decades, spanning from 1973 through the 2007-08 school year. Due to changes the District made in the contract, Strumolo did not bid for the 2008-09 school year.
Strumolo is a mechanic who has owned Hiawatha since the 1970s. In 2006, Strumolo consolidated his business into one location containing a gas station and two service bays. For decades, Strumolo had been active in politics and municipal government. He had been a member of a local political party committee for twenty to thirty years, at times serving as its chairman. He had been elected or appointed twice to the municipal council. After deciding not to bid for the District's maintenance contract, Strumolo ran for and won a seat on the Board the following year.
Strumolo became acquainted with plaintiff in 2005, shortly after she began her duties as Transportation Coordinator. From the first day he met plaintiff, Strumolo disliked her and thought she was arrogant. As he acknowledged in his testimony, during his initial meeting with plaintiff, Strumolo made a point of telling her about his political connections, and that he had relationships with several Board members.
Louis Valori, a former local police officer, was elected to the Board in April 2008 and was appointed to the Board's Transportation Committee. Valori is a long-time member of the same local political party committee as Strumolo, having served previously as its chairman. He considered Strumolo a friend, although Valori stated that they did not socialize with one another.
Another Board member, Anthony Mancuso, testified that he became acquainted with Strumolo at a local community club and used to also patronize Strumolo's business regularly. Mancuso testified that he received complaints about plaintiff from both Strumolo and Valori. Strumolo complained that various procedures that plaintiff implemented had unduly hampered him from doing his job. Valori, meanwhile, was upset about several incidents in which plaintiff made comments of a personal nature toward him.
Plaintiff's counsel also read to the jury some limited excerpts of the deposition of a former Board member, who passed away before trial. The decedent testified that he had been a regular customer of Strumolo's business and that, at times, Strumolo had given him "tips" about running for office and raising campaign funds. The excerpts do not include any testimony about the decedent's vote to non-renew plaintiff, or whether Strumolo had influenced that vote.
Wendolowski was aware of both Strumolo's difficulties in dealing with plaintiff, and with his political connections. She specifically recalled a meeting with Strumolo at his garage, occurring early on in plaintiff's employment, in which Strumolo, referring to plaintiff, stated that "this woman has to go."
The Bus Inspection/Maintenance Issues and Plaintiff's Alleged Whistleblowing
Pursuant to N.J.S.A. 39:3B-21(a)(1) and N.J.A.C. 13:20-30.15, state motor vehicle inspectors are required to inspect public school buses twice each year. For the District, those inspections occurred annually in the months of February and August. In addition, the owner or operator was required to inspect his or her bus every three months, or every 3000 miles.
At the time plaintiff was hired, the District had no standard inspection form for Strumolo's use. Plaintiff thus created one, patterned on forms from other districts where she had previously worked. In addition, she instituted a system to compare the inspection results with the repairs that Strumolo had done.
In January and February 2006, ten of the Board's twenty-six buses were taken out of service because of failed state inspections. Later, in August 2006, seven out of the twenty-six buses were taken out of service. All of those buses had been maintained by Strumolo or his company.
In early 2006, plaintiff advised Wendolowski and James Dwyer, who was the Superintendent at that time, that the Board should use another maintenance vendor instead of Strumolo. She also proposed new specifications for bus maintenance. Those specifications called for the vendor to have a three-bay garage with lifts and certified mechanics. Plaintiff submitted those proposed specifications to Wendolowski, but they were not adopted that school year.
According to Mancuso, in January 2007, Strumolo was upset with the contract that he had for that school year with the District, because the contract required him to provide free oil changes for the buses. Strumolo claimed he had not previously read the specifications, and he wanted to be paid for those oil changes.
Seitz, the Superintendent, thereafter sent an e-mail to some Board members and Wendolowski addressing the oil change provision and also expressing concerns about Strumolo's ability to properly maintain the buses. Seitz testified that he learned from Wendolowski that there were ongoing problems of communication and cooperation between Strumolo and plaintiff.
In February 2007, more problems surfaced from the state inspections, as eleven out of the District's nineteen buses were found to have substantial mechanical issues, and were placed out of service. Strumolo blamed the situation on what he perceived to be plaintiff's arrogance. He recalled that plaintiff had gotten into a heated argument with the inspectors. He also claimed that he did not get access to the buses in time to prepare for those inspections. Strumolo explained that in previous years, he ordinarily retained a set of keys to the buses. Plaintiff changed that policy, however, and took the keys away from him. Strumolo explained that this prevented him from getting to and repairing the buses in time.
In response, plaintiff testified that she had changed the policy on Strumolo's key access because dispatch personnel had experienced problems in discovering that buses they had assigned were, in fact, unavailable. On the other hand, Strumolo contended that plaintiff made it impossible for him to do what she wanted him to do. He characterized his relationship with plaintiff as "a very hostile relationship," and as a result, he tried to have as few conversations with her as possible.
Meanwhile, Seitz was concerned about the number of buses failing the State inspections. He was also concerned that plaintiff and Strumolo could not cooperate with one another. In early March 2007, Seitz met with Strumolo and also corresponded to him in writing, expressing these concerns.
Despite these problems, Strumolo asserted that he was proud of his overall record in maintaining buses for the District. He pointed out in his testimony that no bus that his company maintained had ever been involved in an accident, and that fewer than six of his buses had broken down in thirty years.
In March 2007, plaintiff, Seitz, Wendolowski, Strumolo, an attorney representing Strumolo, and the Board's counsel all met and conferred about the bus maintenance issues. Strumolo and plaintiff apparently had heated exchanges with one other during that meeting. Nevertheless, the parties were able to reach a formal written agreement. Among other things, the agreement specifically provided for Strumolo to inspect the bus wheels and brakes. This agreement also clarified the lines of communication between Strumolo and plaintiff, but unfortunately, it did not completely resolve their differences.
Strumolo's Renewed Contract and Continuing Problems
In July 2007, the Board renewed Strumolo's vendor contract, providing him with a ten percent price increase. Wendolowski had recommended the price increase to the Transportation Committee at Strumolo's request. Despite this raise, however, Wendolowski acknowledged that plaintiff had complaints with how the buses were being serviced. Wendolowski generally found those complaints to be accurate, and she supported plaintiff in making changes to address the problems that plaintiff had identified.
Strumolo acknowledged that not all the inspection failures were plaintiff's fault, but he felt that many of them stemmed from items that she was supposed to supply him with, but had not done. As Strumolo confirmed in his testimony, he specifically told Wendolowski that plaintiff was "the worst" Transportation Coordinator that he had worked with in thirty years. He also complained to Mancuso about plaintiff when Mancuso stopped in his gas station. In addition, Strumolo also spoke to another Board member about how "horrible" things were with plaintiff.
In February 2008, eighteen out of the District's twenty-six buses failed their state inspections. Seitz instructed Wendolowski and plaintiff to handle the problem. Plaintiff drafted a letter to Strumolo, detailing problems not only with bus maintenance, but also with his billing practices. Wendolowski reviewed the draft letter but determined that its proposed language was too inflammatory. Wendolowski asked plaintiff to revise the letter, but apparently, it was never sent. Seitz, meanwhile, was aware of these billing problems. So was Wendolowski, who recalled that certain invoices from Strumolo were vague and incomplete.
On June 11, 2008, the Transportation Committee met, with Wendolowski and plaintiff in attendance. Plaintiff had drafted new proposed bus maintenance specifications for school year 2008-09. Those specifications were submitted for approval at the meeting and were adopted by the Board. They required that the vendor: (1) have a three-bay facility that could simultaneously accommodate one full-sized bus and two small ones; (2) perform quarterly inspections every 90 days or 3000 miles; and (3) do preventative maintenance, transmission, and chassis lubrications. These revised specifications had the effect of disqualifying Strumolo from bidding for the 2008-09 school year because his company lacked the equipment to meet the additional requirements. The maintenance contract, effective September 26, 2008, was instead awarded to another bidder, On-Site Fleet Service ("On-Site").
In July 2008, plaintiff informed Wendolowski that "serious" issues concerning the brakes on the buses needed to be addressed. The brakes had been attended to by another repair facility, Summit Truck, a company owned and operated by Timothy Erday.
According to Erday's trial testimony, several of the buses had been sent to his shop for collision repairs. While those buses were there, he was also asked to look at problems that had been noted with their brakes.
According to Erday, his company repaired school buses for a number of school districts. He inspected about ten to fifteen of the District's buses. Erday noticed in particular the presence of a series of adapter clamps on parking brake cables, which were used to tighten the cables. Later testimony revealed that the clamps were installed as a temporary remedy so that the buses could pass inspection. Another employee of Summit Truck told plaintiff that a mechanic there had discovered four clamps on an emergency brake line for one of the buses, and that such clamps were an improper method of addressing the problem. A subsequent investigation revealed nine additional buses with temporary clamps installed on their brake lines.
In the summer of 2008, Strumolo visited Summit Truck's facility. According to Erday, on that occasion, Strumolo told Erday that he would use his political connections to ensure that plaintiff would no longer be the District's Transportation Coordinator. In addition, at another time in 2008, Strumolo told Erday that plaintiff "wouldn't be there [with the District] long."
At a Transportation Committee meeting on July 23, 2008, plaintiff informed the Committee of her concerns about the brakes, the general quality of Strumolo's bus maintenance, and how the initial report of buses needing repairs was, as she put it, the "tip of the iceberg." Plaintiff also raised concerns about the perceived friendship between Strumolo and Valori, since Valori was a Board member.
Valori reacted with anger to plaintiff's comments, and was offended by plaintiff's intimation that his past or present friendship with Strumolo had interfered with substantive issues being considered by the Transportation Committee. Seitz believed that plaintiff's comments challenging Valori's integrity and honesty as a Board member were unfounded.
In mid-August 2008, Seitz wrote to Wendolowski and questioned whether there was enough information to disqualify Strumolo from bidding on the upcoming bus maintenance contract. Before the Transportation Committee meeting on August 27, 2008, plaintiff prepared a file of invoices from the two outside repair companies, Summit Truck and On-Site, detailing the brake repairs they had done on the District's buses that summer. Based on that information from those companies, as well as input from Wendolowski and plaintiff, Seitz concluded that there were enough concerns to consider disqualifying Strumolo from the next contract.
Issues with Plaintiff's Job Performance
Apart from these problems with bus maintenance, the Board also began to scrutinize plaintiff's job performance, in light of several incidents that had occurred. The first incident, as Seitz recounted in his testimony, concerned the opening day of school in the fall of 2007. On that day, ten bus drivers employed by the District's recently-hired bus supplier, Student Transportation of America ("STA"), failed to report to work, leaving the District short-handed. According to Seitz, plaintiff had not undertaken sufficient due diligence in preventing the problem. STA's dispatcher informed plaintiff, Wendolowski, and Seitz that the prior bus vendor had apparently hired away ten drivers from STA the weekend before school started.
Seitz learned that plaintiff was at home that morning, making sure her own child got on the school bus. Nevertheless, he expected her to be early at work, given that it was the opening day of the school year. Seitz was dissatisfied that there was an absence of drivers that day, and that plaintiff had no plan to address the problem. He felt that plaintiff did not properly coordinate the school opening, despite the fact that she had ample time in advance to ensure that STA was fully prepared to take over the bus routes. After this incident occurred, Wendolowski issued plaintiff a written reprimand, which admonished her for not coming to work early on that first day of school.
Plaintiff testified that she took several steps in the summer of 2007 to make sure that the school opening would go smoothly. She denied reporting to work late on the first day of school, although she also acknowledged that she was not early either, as was expected of her. Plaintiff agreed that she did not tell Wendolowski that she would not be in early that day. Eventually, plaintiff signed a written apology, in which she acknowledged not informing Wendolowski of her schedule and not arriving in advance of the regular work day during that first day of school.
The second incident concerning plaintiff's job performance occurred in late September 2007. It involved parents' complaints about rerouting bus stops in the Puddingstone section of the District, and the lack of door-to-door service for those students. Seitz claimed that plaintiff had told him that no door-to-door service had been provided for those children during the previous school year. However, the parents refuted this information by showing Seitz bus passes from the previous year, reflecting that such door-to-door service had, in fact, been provided.
Seitz was unhappy that plaintiff had given him incorrect information, which had embarrassed him in front of the complaining parents. He felt that plaintiff had exhibited a lack of credibility and trust, and that the District's reputation, as well as his personal reputation, had been tarnished.
The Puddingstone incident resulted in a formal reprimand of plaintiff, and a letter to that effect was placed in her personnel file. However, in her own trial testimony, plaintiff denied that she had given Seitz incorrect information about the Puddingstone routes.
The third incident was an April 2008 hostage situation that involved a police-ordered evacuation of an elementary school. According to Seitz, he could not locate plaintiff as the situation unfolded. Plaintiff stated that she had been in contact with her office while she was driving to the office that morning. Plaintiff further claimed that she had arrived by 8:00 a.m. that day.
The fourth incident involved a fuel cap problem, in which bus drivers were erroneously putting gasoline in the diesel engine buses, causing those engines to malfunction. According to Seitz, plaintiff had assured him that corrective action had been taken to prevent those situations. She contended that after learning that a driver had put the wrong fuel in one of the buses, she called Strumolo and asked him to handle the problem. To prevent this kind of mistake from repeating, plaintiff suggested that the fuel caps on the diesel buses be painted green. She claimed that she let Seitz know about this new procedure in June 2008. However, plaintiff also conceded that she did not afterwards check to confirm that this had been done to all the diesel buses. Mancuso testified that he later brought to Seitz's attention that, in fact, not all of the caps had been painted.
Seitz contended that plaintiff had again given him wrong information by assuring him that the problem had been rectified. According to Seitz, he ultimately learned from Wendolowski that half of the gas caps on the District's buses were not properly color-coded. Wendolowski thereafter sent a memorandum to plaintiff in June 2008, stating that although plaintiff had represented that the diesel problem had been addressed, this was actually not the case.
In addition to these four incidents, the Board also presented testimony from Wendolowski along with other proofs substantiating problems that had been perceived with plaintiff's job performance. In general, Wendolowski found plaintiff's methods of communicating with Strumolo, the parents, and other staff to be problematic. She felt that plaintiff needed to develop an approach that was less argumentative. In particular, Wendolowski recalled situations in which staff members would bring problems to plaintiff, and plaintiff would respond that she had made a decision and that "that[ was] the way things need[ed] to be done." Wendolowski felt that such a rigid attitude was inappropriate.
In mid-May 2008, Wendolowski issued plaintiff's written performance evaluation for the 2007-08 school year, the first one that had been issued since plaintiff's hire in 2005. As part of the evaluation process, Wendolowski told plaintiff that she had to ensure that henceforth, someone was always available in the transportation office during morning and afternoon hours.
The performance evaluation did not mention the Puddingstone or hostage incidents. However, the evaluation did state that plaintiff needed to develop a less intense and argumentative approach in dealing both with problematic situations and with higher levels of authority. According to Wendolowski, she occasionally received phone calls from parents who were upset with the way plaintiff had spoken to them. She had made Seitz aware of those incidents.
Plaintiff commented on the evaluation form, accepting Wendolowski's criticisms of her interpersonal skills, but also stating that she was attempting to improve them. For instance, Wendolowski had recommended that plaintiff take staff development courses, and in fact, plaintiff did attend two courses on improving her public speaking.
Plaintiff's Non-Renewal and Her Discharge
Although the September 2008 school opening evidently went smoothly, Seitz had already lost trust in plaintiff by that point. According to plaintiff, Seitz told her that fall that if she did not resign, her contract would not be renewed. Plaintiff's contract with the Board had expired on June 30, 2008. Nevertheless, she continued to work as Transportation Coordinator at the outset of the 2008-09 school year without a new contract.
On November 4, 2008, Seitz recommended to the Board's Personnel Committee that, given the problems with plaintiff's performance, her contract should not be renewed. Following that recommendation, the Board unanimously voted to terminate plaintiff's contract, effective January 9, 2009. Plaintiff was thereby given sixty days' notice. After receiving this notice that her contract would not be renewed, plaintiff immediately stopped working for the District.
Plaintiff does not contend that the timing of the notice was insufficient.
Plaintiff perceived that several Board members, including Mancuso and Valori, had acted in concert with Strumolo to have her terminated in retaliation for her whistle-blowing activities. She also believed that Strumolo had improperly influenced Seitz to remove her. In addition, she believed that Strumolo had an "agenda" against her, which Mancuso and Valori had carried out.
The Board denied plaintiff's claim that her employment as Transportation Coordinator had been improperly terminated because of her complaints about bus maintenance problems. To the contrary, the Board contended at trial that it had discontinued her services because of legitimate business reasons relating to her job performance.
In his own trial testimony, Strumolo denied that he had influenced or attempted to influence any Board member to terminate plaintiff or to not renew her contract. He specifically asserted that he never had a conversation with Seitz regarding plaintiff's continued employment.
Similarly, Mancuso testified that his vote as a Board member to not renew plaintiff's contract had nothing to do with his relationship with Strumolo. Valori also denied that Strumolo had influenced him in the decision to discontinue plaintiff's services.
Wendolowski testified that she never heard any Board members say to Seitz that they did not want plaintiff's contract renewed. In addition, she denied that Strumolo or anyone else had approached her about not renewing plaintiff's contract.
Seitz testified that he did not have any conversations with Strumolo in which Strumolo recommended that the Board not renew plaintiff's contract. He also denied that any Board members had approached him to recommend that plaintiff's contract not be renewed. Instead, Seitz asserted that it was plaintiff's own failures that had resulted in his recommendation not to renew her contract. In this regard, Seitz referenced in his testimony the four aforementioned incidents between September 2007 and June 2008 that showed plaintiff's poor performance. In addition, Seitz expressed his more general perception that plaintiff lacked the ability to work effectively with others and to interact well with the students' parents.
In their own testimony, Wendolowski and Mancuso slightly differed, contending that only three of the four incidents had been cited by Seitz in deciding to recommend that plaintiff not be retained.
Following plaintiff's termination, Seitz recommended to the Board that her functions be performed by a part-time employee. According to Seitz, this change to a part-time employee saved the Board approximately $4 0,000 per year.
After her employment with the Board ended, plaintiff worked briefly for another school district. In June 2009, she resigned from that position.
Because the first phase of the bifurcated trial was confined to liability issues, we do not have before us a plenary factual record concerning damages, including plaintiff's efforts to mitigate them by finding and maintaining other employment.
The Litigation and The Trial
Plaintiff filed a two-count complaint in the Law Division in October 2009. The first count alleged that the Board violated CEPA because it discontinued her employment in retaliation for her expression of concerns relating to the safety of the District's buses. The second count alleged that Strumolo and Hiawatha had tortiously interfered with her contract with the District, leading to her termination.
The Board, Strumolo, and Hiawatha all denied that the Board's decision to discontinue plaintiff's services had been improperly precipitated, either by her alleged whistleblowing activity or by the alleged exertion of Strumolo's political influence. Instead, they argued that plaintiff had been non-renewed for legitimate business reasons.
Defendants moved for summary judgment prior to trial, which the court denied. The court also denied plaintiff's motion for partial summary judgment, in which she attempted to have the court strike the Board's affirmative defense asserting that her monetary claims were barred or limited by a failure to mitigate damages.
At plaintiff's behest, the trial court bifurcated the liability phase of the trial from the damages phase. The proofs concerning liability were presented to a jury over four trial days. After defendants rested their case, they moved to dismiss plaintiff's complaint. The judge reserved decision on that application and allowed the case to go to the jury.
Following deliberations, the jury found in favor of the Board on the CEPA claim, but in favor of plaintiff on her tortious interference claim against Strumolo and Hiawatha. After engaging in further colloquy with counsel, the court granted JNOV in favor of Strumolo and Hiawatha. The court accordingly entered final judgment on June 26, 2012, dismissing plaintiff's complaint in its entirety, with prejudice. This appeal by plaintiff ensued.
II.
In challenging the judgment on count one in favor of the Board, plaintiff alleges two trial errors. In particular, she contends that the court erred in (1) declining her counsel's request during voir dire to specifically question prospective jurors about their willingness as taxpayers to award damages against the Board, a public entity; and (2) restricting the opinion testimony of Erday, who had not issued an expert report during discovery, concerning the cause of the deficient bus brakes. Based on these alleged errors, plaintiff contends that she is entitled to a new liability trial on her CEPA claim in count one.
As to count two against Strumolo and Hiawatha, plaintiff argues that the trial court erred in granting JNOV and nullifying the jury's determination that those private defendants had tortiously interfered with her employment with the Board. She consequently seeks to have the verdict on count two reinstated, and to proceed to a trial on damages.
Lastly, although proofs concerning damages were never presented in the first phase of this bifurcated trial, plaintiff seeks reversal of the trial court's interlocutory order denying her motion to strike the failure-to-mitigate defense.
We examine these issues in turn.
A.
Plaintiff contends that the jury's rejection of her CEPA claim was prejudicially affected by the trial court's failure to ask prospective jurors specifically about their willingness to award damages against a school board. We reject that contention.
Rule 1:8-3(f) mandates a conference with the court and counsel to review potential voir dire questions before the examination of prospective jurors:
Prior to the examination of the prospective jurors, the court shall hold a conference on the record to determine the areas of inquiry during voir dire. Attorneys shall submit proposed voir dire questions in writing in advance. If requested, the court shall
determine whether the attorneys may participate in the questioning of the prospective jurors and, if so, to what extent. During the course of the questioning, additional questions of prospective jurors may be requested and asked as appropriate under the circumstances. The judge shall rule on the record on the proposed voir dire questions and on any requested attorney participation.
Plaintiff's attorney submitted forty-three proposed questions in the voir dire conference, in addition to the ones that were presumptively required to be asked under the judiciary's standard voir dire procedures for civil cases. Among those requested queries was question number thirty-six, which was phrased, "If wrongdoing was proven, what concerns, if any, would you have about imposing a monetary judgment against a local school board?" This proposed question was followed by, "How hard or easy would it be for you to set aside these concerns? Why?"
See New Jersey Courts, Model Jury Selection Questions, Standard Jury_Voir_Dire, Civil (2007 ), available at http://www.judiciary.state.nj.us/jury/std_jury_quest_civil.pdf.
Although the trial judge approved, and did ask, several of the supplemental voir dire questions proposed by plaintiff's counsel, the judge declined to ask question number thirty-six. The judge stated that he was not going to ask every single supplemental question that was presented to him, concluding that "the topics are adequately covered" in the numerous questions that he had agreed to pose. Plaintiff's counsel pressed the issue, speculating that jurors might worry about taxes in the then-current economic climate and therefore might be reluctant to find the Board liable on the CEPA claim. The judge rejected the request, determining that such bias concerns were already covered adequately by the other questions being posed.
The court also rejected a question proposed by plaintiff about how jurors specifically felt about the board of education, as a subset of public entities. The judge stated that he would instead ask about the jurors' attitudes concerning corporations, public or private, and that such a broader inquiry would adequately cover the jurors' feelings about school boards.
Plaintiff contends that the judge's rejection of her proposed voir dire questions on this subject was a mistaken and prejudicial exercise of discretion. She claims this was borne out by the jury ultimately rejecting her CEPA claim but agreeing with her claims against Strumolo and Hiawatha, who are private defendants.
The transcript reveals that the trial judge did ask all of the prospective jurors the following questions: "Do you have any bias for or against parties who bring lawsuits or defend against lawsuits? If so, raise your hand. Do you have any bias for or against public schools or public school boards of education? If yes, raise your hand."
Apart from posing these pre-approved questions, the judge also posed several questions in ad hoc fashion that delved further into the jurors' attitudes concerning school boards. For instance, in questioning a specific juror in open court, the judge asked, "[I]f — were you to be a member of the jury that decided in favor of the plaintiff, that jury would also have to consider the question of monetary damages. Would you have any issues in your mind with respect to assessing monetary damages against a school board?" Addressing another juror in open court, the judge asked, "Can you treat a corporation the same way you would anybody else?" He similarly questioned another juror, asking, "Do you think you could be fair in deciding whether these administrators and this board of education did right or wrong?" Another juror was asked, "Could you treat a board of education or a corporation the same way you would a person?" and another, "[C]an you treat a company or a board of education the same way you would anybody else?"
Our scope of review of this issue is limited. As the parties acknowledge, the questions to be asked of prospective jurors during the voir dire process are to be determined in the sound discretion of the trial judge. Decisions of this nature are reviewed deferentially on appeal, under an abuse of discretion standard. See State v. Simon, 161 N.J. 416, 466 (1999) (holding that a judge's decisions during voir dire will not be reversed, absent a proven abuse of discretion); Roman v. Mitchell, 82 N.J. 336, 348-49 (1980) (holding that questions to be asked prospective jurors during voir dire are to be determined in the sound discretion of the trial judge).
Plaintiff states that there are only two published New Jersey civil cases that discuss the propriety of specific voir dire questions in the context of the legal issues to be tried, but concedes that neither case is germane to the situation here. Plaintiff argues that more on point is a Missouri case, Ashcroft v. TAD Resources International, 972 S.W.2d 502 (Mo. Ct. App. 1998). In Ashcroft, the trial court disallowed any voir dire questions to prospective jurors concerning their attitudes about the subject of punitive damages. Id. at 506-07. At trial, the empaneled jury awarded compensatory damages to plaintiff but not punitive damages. Id. at 505. The Missouri appellate court held that the trial court's restriction of such inquiry concerning punitive damages was arbitrary and unreasonable, and amounted to an abuse of discretion. Id. at 507. The appellate court also found that the trial court's categorical exclusion of such questioning was too prejudicial to allow the verdict on punitive damages to stand. Id. at 507-08.
See Roman, supra, 82 N.J. at 347-49 (upholding a trial judge's rejection of plaintiff's counsel's request in a personal injury action to ask prospective jurors whether they were stockholders in or employed by casualty insurers); see also Paradossi v. Reinauer Bros. Oil Co., 53 N.J. Super. 41, 49-51 (App. Div. 1958) (declaring it inappropriate to question proposed jurors about whether they would be disinclined to award a specific sum of money in a tenant's property damage case against a landlord).
The present case is distinguishable from Ashcroft for several reasons. For one thing, the proposed questions at issue here are not about punitive damages. Punitive damages are a discrete and qualitatively distinct category of damages which require jurors to assess, in a normative manner, the severity of a defendant's wrongful conduct and the need to deter such willful or wanton acts in the future. See N.J.S.A. 2A:15-5.9 to -5.17. Punitive damages issues thereby strike at the very heart of jurors' personal notions of fairness and morality. The issues of the Board's liability or non-liability under the elements of CEPA are not as inherently normative in nature.
Moreover, other questions were posed here that sufficiently ferreted out the jury's reservations, if any, concerning their willingness to follow the court's instructions and to treat all parties fairly concerning the issues in the case, including damages. The questions were appropriately couched in open-ended form, and thereby designed to elicit the jurors' feelings and attitudes. The situation here is different from Ashcroft, in which the trial court had categorically disallowed any questions concerning punitive damages.
The trial judge posed numerous questions about whether prospective jurors were biased for or against corporations, public and private, and for or against boards of education. He also asked at least one prospective juror whether she would have "any issues in [her] mind" in assessing monetary damages against a school board. As we have already noted, these questions evidently were all posed in open court, as the transcript contains no indication that the jurors were queried at sidebar. Hence, all prospective jurors in the courtroom had an additional opportunity to hear and consider such questions and to bring any possible bias to the attention of the judge.
Although we recognize that voir dire questions fashioned to expose juror bias or prejudice are often useful and appropriate, see, e.g., Pellicer v. Saint Barnabas Hospital, 200 N.J. 22, 40 (2009), the voir dire questions posed to the jurors here sufficiently covered the bias concerns relating to the defendant Board. Moreover, even if we determined — which we do not — that the judge abused his discretion in failing to include some of plaintiff's proposed questions, we have no reason to presume that she was so prejudiced by such an omission that a new trial is warranted.
Plaintiff's speculative claim of prejudice stemming from the voir dire limitation is also weakened by her failure to exhaust her peremptory challenges. Although plaintiff had six peremptory challenges, her counsel chose only to use four of them before accepting the jurors seated in the jury box. If, in fact, plaintiff had lingering concerns about the jurors' potential fears of tax repercussions, her counsel could have challenged up to two more of the empanelled jurors. Plaintiff bypassed this opportunity, which undermines her contention that she was forced to try the case before a jury panel that allegedly included unsatisfactory and biased fact-finders. In fact, defense counsel twice stated affirmatively on the record, without qualification, that the jury was "satisfactory" as constituted.
We recognize that plaintiff might have gained more information about the seated jurors if her proposed voir dire questions had been asked, and that she and her counsel might have been concerned that replacement jurors drawn from the venire pool might have been less open to her claims. Even so, she made a strategic choice to leave two of her peremptory challenges unused.
For these many reasons, we reject plaintiff's contention that she was entitled to a new trial because of the court's rejection of some of the voir dire questions that she had proposed.
B.
Plaintiff contends that the trial court erred in restricting Erday's testimony to his factual observations of the bus brakes that he had inspected and repaired, and in prohibiting Erday from presenting expert opinions about the likely causes of the condition of those brakes. In particular, plaintiff wanted Erday to tell the jury that, in his opinion, the brakes were deficient due to inadequate maintenance by Strumolo, rather than due to ordinary wear and tear. We are satisfied that the judge did not err in imposing that limitation where, as here, Erday had not been designated by plaintiff as an expert witness during pretrial discovery and had not issued a written expert report.
To place into context plaintiff's attempt at trial to utilize Erday as an expert witness, it is useful to consider the basic elements that she needed to prove in her CEPA claim. CEPA is a statute designed to "prevent retaliation against those employees who object to employer conduct that they reasonably believe to be unlawful or indisputably dangerous to the public health, safety or welfare." Mehlman v. Mobil Oil Corp., 153 N.J. 163, 193-94 (1998); see also N.J.S.A. 34:19-3. In order to establish a cognizable CEPA claim, an employee must show 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[(a) or (c), such as discussing or objecting to such illegality or wrongdoing];
(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.
[Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003) (citing Kolb v. Burns, 320 N.J. Super. 467, 476 (App. Div. 1999), and Mosley v. Femina Fashions, Inc., 356 N.J. Super. 118, 127 (App. Div. 2002), certif. denied, 176 N.J. 279 (2003)).]
Once a CEPA plaintiff establishes a prima facie case, the burden shifts to the defendant employer to articulate a legitimate non-discriminatory reason for the employment action. Fleming v. Corr. Healthcare Solutions, Inc., 164 N.J. 90, 100 (2000) (citing Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1096 n.4 (3d Cir. 1995)); Kolb, supra, 320 N.J. Super. at 478. If the employer produces evidence showing a legitimate, non-discriminatory reason for the employment action, the burden of production shifts back to the employee, who must show that the employer's proffered explanation is incredible. Fleming, supra, 164 N.J. at 100 (citing Starceski, supra, 54 F.3d at 1096 n.4); Kolb, supra, 320 N.J. Super. at 478. The burden of proof, or risk of non-persuasion, including the burden of proving "but for" causation or causation in fact, always remains on the employee. Fleming, supra, 164 N.J. at 100 (citing Starceski, supra, 54 F.3d at 1096 n.4).
Plaintiff discusses in her brief why she believes that she established — despite the jury's verdict — CEPA's required elements at trial, and why the Board's asserted job-performance reasons for her non-renewal were pretextual. Plaintiff did not, however, move for a new trial, and she concedes that she is therefore precluded on appeal from arguing that the jury's verdict on the CEPA count was against the weight of the evidence. See R. 2:10-1; Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 462 (2009).
As part of her effort to show that she had disclosed and objected to bus safety practices that she reasonably believed were contrary to law or public policy, plaintiff wished to have Erday testify that, in his opinion, the defective condition of the brakes that he worked on was caused by Strumolo's poor maintenance. Among other things, plaintiff's counsel specifically asked Erday whether the brakes had been maintained in accordance with industry standards. When plaintiff's counsel began to solicit such expert opinions from Erday about industry standards, defense counsel timely objected. The trial judge sustained the objections, instructing that Erday's testimony as a lay witness must be confined factually to "what he saw" and "what he did."
The record reflects that Erday has been in the automotive repair business for nearly fifty years, and that he has substantial experience in repairing school buses in particular. He seemingly possesses ample credentials to have been qualified as an expert witness under N.J.R.E. 702 in the field of school bus maintenance, and defense counsel does not quarrel with his level of expertise.
However, it is undisputed that plaintiff did not appropriately designate Erday in pretrial discovery under Rule 4:10-2(d) as an expert witness she intended to call at trial. It is also undisputed that Erday did not issue a written expert report, in compliance with Rule 4:17-4(e), setting forth "a complete statement of that person's opinions and the basis therefor; the facts and data considered in forming the opinions; the qualifications of the witness . . . and the terms of [any] compensation." The Rules clearly provide that if an expert report is not so furnished, the court may prohibit that individual from testifying as an expert. Ibid.
The salutary purpose of these pretrial rules is to assure that expert witnesses are clearly designated and that anticipated expert opinions are clearly and fairly disclosed as such before trial. In this way, adversaries are given an ample opportunity to retain competing experts, if they so choose, to rebut the opinions being advanced by an opposing designated expert. That designation was not done here, placing defendants in a prejudicial posture of having no reason to think that plaintiff would seek to elicit expert opinions from Erday at trial. See State v. McLean, 205 N.J. 438, 449-63 (2011) (disapproving the State's attempt in a criminal prosecution to elicit certain expert opinions from a testifying police officer in the guise of fact testimony or "lay opinion" under N.J.R.E. 701). Plaintiff contends that the substance of Erday's expert views were revealed to defense counsel during his deposition. However, such oral examination does not fulfill the orderly and important requirement of a written expert report.
Plaintiff attempts to liken Erday to a treating physician. Under a limited exception recognized in our case law, treating physicians may be permitted to give opinions about their diagnosis of a patient and about their perception of the likely causes of the patient's condition. Plaintiff relies in this regard on Stigliano v. Connaught Laboratories, Inc., 140 N.J. 305, 312, 314 (1995), in which the Supreme Court permitted the defendants in a medical malpractice action to elicit causation testimony from the plaintiffs' treating physician, even though the plaintiffs did not intend to call that physician as a witness and even though the physician had not issued an expert report for the defense.
The Court in Stigliano carved out a special testimonial exception for treating physicians, despite the absence of a corresponding expert report or expert witness designation, in recognition that "the determination of the cause of a patient's illness is an essential part of diagnosis and treatment." Id. at 314; see also Ginsberg v. St. Michael's Hosp., 292 N.J. Super. 21, 32-33 (App. Div. 1996) (applying the Stigliano exception to the causation opinions of a treating physician). The Court noted within its analysis in Stigliano the fiduciary relationship between a treating physician and his or her patient, which "gives rise to a duty to testify in judicial proceedings about treatment rendered to the patient." Stigliano, supra, 140 N.J. at 316.
The present situation involving the testimony of Erday, a garage mechanic, is outside of the purview of the Stigliano exception for treating physicians. Although we recognize Erday's many years of experience in his field of endeavor, that experience cannot be equated with the qualifications of a physician who must progress through the rigors of a medical education and professional licensure. Unlike a doctor, Erday does not have a fiduciary relationship with those who receive his services. The Supreme Court does not give any indication in Stigliano — nor has it since it decided that case in 1995 — that the special testimonial exemption created for treating physicians should be extended to other occupations.
Plaintiff has called to our attention an unpublished opinion applying the Stigliano exception to a non-physician. We are not obligated to follow that non-precedential opinion, and choose not to do so. R. 1:36-3.
We further observe that treating physicians commonly notate their medical findings in written form in a patient's medical chart, a process which is not necessarily replicated with the same detail or level of professional rigor as, say, an automotive repair bill. Physicians are also subject to a distinctively intensive level of federal and state regulations, and oversight by the State Board of Medical Examiners, hospital accreditation committees, and board certification bodies. We, therefore, discern no compelling reason to expand the Stigliano exception to cover garage mechanics, even those who may be as experienced as Erday.
See, e.g., N.J.A.C. 13:35-6.5(b) (requiring licensed physicians to "prepare contemporaneous, permanent professional treatment records," which shall, to the extent applicable, reflect such matters as the patient's history, N.J.A.C. 13:35-6.5(b)(1)(iii), "[f]indings on appropriate examination," N.J.A.C. 13:35-6.5(b)(1)(iv), and the doctor's "[d]iagnosis or medical impression," N.J.A.C. 13:35-6.5(b)(1)(vii)). Although automobile mechanics are subject to some forms of regulatory requirements, they are not as extensive as those applicable to licensed physicians. See, e.g., N.J.A.C. 13:20-30.5(f) (requiring automobile mechanics who service school buses to submit a form certification detailing the vehicle's registration number and "a statement indicating that all out-of-service violations have been repaired and that the repairs meet all State and Federal requirements"); N.J.A.C. 13:45A-26C2 (itemizing certain information required in automotive bills).
See also Ford Motor Credit Co. v. Mendola, 427 N.J. Super. 226, 244-45 (App. Div. 2012) (ruling that statements contained in a written automotive service report by a car mechanic who had examined a towed car concerning what may have caused a car's engine problems were "relatively complex opinions or diagnostic conclusions," which should have been set forth in an expert report served on the opposing party, thereby enabling the opponent to obtain "her own expert report to counter" that expert).
Our courts do not favor trial by ambush. A central aspect of plaintiff's initial questioning of Erday was to attempt to have him opine on whether Strumolo's care for the bus brakes fell short of industry standards. Such standards, assuming they exist, were not identified by Erday, or by plaintiff, during the pretrial discovery period. For instance, there was no documentation in the trial record that showed what the industry standard was for applying clamps to emergency cable brakes. In fact, plaintiff's counsel conceded at oral argument before us that his attempted questions about industry standards were, on reflection, ill advised.
Even if plaintiff had properly designated Erday as an expert in her case, defense counsel would have been entitled to know before trial what standards Erday planned to invoke. Such disclosures in an expert report would have enabled the defense to prepare fairly for that testimony, to investigate and research the development of suitable queries for cross-examination, and potentially retain a competing expert who might have had differing opinions about such industry standards and how they apply or do not apply here.
We discern no aspect of our decision in Konop v. Rosen, 425 N.J. Super. 391, 401 (App. Div. 2012), a medical malpractice case cited by plaintiff, that justifies the presentation of Erday's opinions on diagnosis and causation. The critical issue in Konop was the source of an entry on a patient's medical chart, not a question of a witness's expertise to testify and offer opinions on the case without issuing an expert report. Id. at 404-05.
Our standard of review of the trial judge's ruling is a narrow one. In general, courts apply an abuse of discretion standard to trial court rulings on discovery matters and to decisions on the admission of evidence and testimony. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011); Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Indeed, "[t]raditional rules of appellate review require substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998) (citations omitted), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). Here, the trial judge did not misapply his discretion with respect to Erday's testimony. The trial judge sensibly drew the line in allowing Erday to testify about what physical conditions he observed in the brakes he repaired without elaborating upon what, in his estimation, caused those brakes to have gotten into that condition. Even if, for the sake of discussion, we agreed with plaintiff that the judge abused his discretion in disallowing Erday's expert opinions about diagnosis and causation, we detect no errors of a reversible magnitude warranting a new trial.
Plaintiff asserts that the judge's alleged error was compounded by multiple admonitions throughout the trial that there was no evidence of defective or neglectful maintenance by Strumolo. Further, plaintiff points out that defense counsel each emphasized in their summations that there was no evidence that the buses were mechanically unsafe.
Even so, the jury did hear testimony from plaintiff herself that she believed that the brakes on the buses were not maintained properly. Under CEPA, a plaintiff's reasonable belief of wrongdoing can suffice as a matter of law to trigger whistleblower status and protection. See N.J.S.A. 34:19-3(a) and (c). It was not essential for plaintiff to prove that the brakes actually were so unsafe as to violate state regulations or public policy. We also note that Erday did testify as to the existence of the clamps and about the repairs made to the brake systems. The jury heard considerable testimony about maintenance problems with the buses and the inspection failure rates.
Although plaintiff was appropriately precluded from eliciting opinion testimony from Erday about industry standards and causation, that limitation did not foreclose her own testimony that she believed there were problems with the brakes. The jury was amply made aware of plaintiff's contentions of unsafe practices, and it nevertheless concluded that she had not proven all elements of her CEPA claim. There was a reasonable basis in the record for the jury to reach that conclusion, and we are unpersuaded that more expansive testimony from Erday would have had a clear capacity to tip the balance.
In sum, we are unpersuaded that plaintiff's claims of trial error compel a new trial on count one. Plaintiff was neither deprived of a fair jury nor of a fair chance to prepare for and present her CEPA claims. Judgment for the Board on count one is accordingly affirmed.
In light of our conclusion, we need not reach whether plaintiff's job duties as a matter of law precluded her from qualifying as a protected whistleblower under CEPA, a general legal issue that is now before the Supreme Court of New Jersey. See Lippman v. Ethicon, Inc., 432 N.J. Super. 378 (App. Div. 2013), certif. granted, ___ N.J. ___ (2014). We also point out that the jury was not charged in this case that plaintiff's job status could affect her ability to sue under CEPA.
III.
We turn to the trial court's decision to set aside the jury verdict on count two on tortious interference and to grant JNOV to codefendants Strumolo and Hiawatha. Several well-settled principles guide our analysis.
The standard for granting a motion for judgment notwithstanding a jury's verdict pursuant to Rule 4:40-2(b) accords considerable deference to the jurors' roles as factfinders. "[T]he test is . . . whether 'the evidence, together with the legitimate inferences therefrom, could sustain a judgment in . . . favor' of the party opposing the motion[.]" Dolson v. Anastasia, 55 N.J. 2, 5 (1969) (quoting Rule 4:37-2(b)); see also Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 415 (1997) (quoting Dolson and applying the same standard). In other words, such a JNOV motion must be denied "if, accepting as true all the evidence which supports the position of the party defending against the motion and according [that party] the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ." Dolson, supra, 55 N.J. at 5-6 (citing Bozza v. Vornado, Inc., 42 N.J. 355 (1964); Bell v. E. Beef Co., 42 N.J. 126 (1964); and Franklin Discount Co. v. Ford, 27 N.J. 473, 490 (1958)). The judicial function in this context is "quite a mechanical one." Id. at 5. The court is "not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion." Id. at 5-6; see also Riley v. Keenan, 406 N.J. Super. 281, 298 (App. Div.), certif. denied, 200 N.J. 207 (2009).
On appeal, we afford similar deference to the jury's factfinding role, taking care to "not overstep [our] bounds by usurping the jury's task of assessing the credibility of the witnesses." Sons of Thunder, supra, 148 N.J. at 415. "[T]he jury's factual determination will be disturbed only if [the court] find[s] that the jury could not have reasonably used the evidence to reach its verdict." Ibid. Applying these standards, we have reversed a trial court's grant of JNOV, for example, in circumstances where there was a reasonable basis in the evidence for the jury's conclusion, noting that it is "error for the court to substitute its judgment for that of the jury." Hernandez v. Montville Twp. Bd. of Educ., 354 N.J. Super. 467, 476 (App. Div. 2002), aff'd, 179 N.J. 81 (2004).
That said, the jurors' verdict is not entitled to deference if the legal underpinnings of the decision are inadequate or flawed. Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521 (2011) (citing Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977)). If the court has correctly charged the jury on the governing law, however, its authority to interfere with the jury's application of those legal standards to the evidence is circumscribed. Feldman v. Lederle Labs., 132 N.J. 339, 345 (1993).
We thus generally apply a de novo standard of review to the grant or denial of JNOV, as we are essentially performing the same task as the trial judge in considering the validity of the verdict. Dolson, supra, 55 N.J. at 7. If the challenge to the verdict is based upon a claim that the evidence adduced at trial does not reasonably support the jury's result, we repeat the trial judge's function in examining, de novo, whether there is reasonable support in the record for the verdict. Ibid. In conducting such review, we apply the identical standard for JNOV that governs the trial court.
If the pivotal question on appeal is whether the verdict is sustainable as a matter of law, we consider that question de novo. That is because a "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Here, our focus is on count two of the complaint, in which plaintiff alleged that the private defendants, i.e., Strumolo and Hiawatha, tortiously interfered with her employment contract with the Board and were thereby precipitating factors in causing her services to be discontinued. Substantively, to establish a claim of tortious interference with prospective economic advantage, a plaintiff must show (1) there was a reasonable expectation of economic advantage, (2) the defendant intentionally interfered with that interest, (3) the harm was inflicted without justification or excuse, and (4) the interference caused the loss of the interest. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 751-52 (1989). It is not necessary for the plaintiff to prove ill will. Lamorte Burns & Co. v. Walters, 167 N.J. 285, 306 (2001); DiMaria Constr., Inc. v. Interarch, 351 N.J. Super. 558, 567 (App. Div. 2001), aff'd o.b., 172 N.J. 182 (2002). Rather, the relevant inquiry is whether the conduct was sanctioned by the "rules of the game" and transgressed generally accepted standards of common morality or law. Lamorte Burns, supra, 167 N.J. at 306 (citation omitted). The element of "malice" in this context is "the intentional doing of a wrongful act without justification or excuse." Printing Mart-Morristown, supra, 116 N.J. at 756 (quoting Louis Schlesinger Co. v. Rice, 4 N.J. 169, 181 (1950)).
Plaintiff contends that when she insisted that Strumolo take certain steps to comply with federal and state regulations when maintaining the school buses, she was appropriately complying with her legal duty as a Transportation Coordinator for a public school district. She notes that Wendolowski confirmed that Strumolo consistently resisted plaintiff's upgraded procedures and record-keeping, measures that were designed to assure the safety of the buses. In fact, Strumolo admitted that he disliked plaintiff from the day he met her. Plaintiff argues, in essence, that his retaliatory conduct towards her went over the line.
As we have already noted, Strumolo denied exerting any improper influence to cause the Board to terminate plaintiff's employment contract. He asserted that he had a legitimate interest in protecting his company and himself from unfair treatment as a vendor of the District. In essence, Strumolo contends that he had a right as a commercial actor to express his disagreements with how plaintiff was administering the District's bus maintenance policies and procedures. He argues that, in advocating his business interests, his conduct could not amount to "malice" within the meaning of that concept under the law of tortious interference. Strumolo relied on the testimony of Seitz, Mancuso, and Valori, in which they each stated that Strumolo had not done or said anything that affected the Board's ultimate decision to non-renew plaintiff.
These competing positions of the parties on the claim in count two were thoroughly presented to the jury, through both the trial evidence and the opening and closing arguments of counsel. In essence, the jury was confronted with the task of assessing whether Strumolo's statements and actions regarding plaintiff were justifiable and benign responses of a businessman who was being criticized and pressured by plaintiff acting as his customer's agent or, conversely, whether Strumolo had gone beyond such self-protection by not only resisting plaintiff's criticisms of his work, but also attempting to have the Board terminate her employment.
The jury apparently found plaintiff's interpretation of the events to be more credible, implicitly rejecting the defense's theme that Strumolo's personal and political stature in the community had nothing to do with the decision to end plaintiff's employment with the District. The jury was persuaded that, as the jury charge asked them to consider, "in the absence of the wrongful act[s] of [Strumolo] it is reasonably probable that the plaintiff would have continued as an employee with the Board."
In granting JNOV to the codefendants on count two, the trial judge concluded that plaintiff had failed to establish the critical element of malice. The judge stated in his oral decision that he did not think that "the law contemplates that malice is simply complaining about an administrator [i.e., plaintiff] being overly strict[,] or even adding that I [meaning Strumolo] think she should go, because she's overly strict." The judge further observed that there was "a complete lack of evidence that Dr. Seitz's action in deciding to dismiss the plaintiff was based on Mr. Strumolo's conduct." Given Seitz's denial that he was influenced by Strumolo, the judge characterized plaintiff's tortious inference claim as one "based upon speculation, not logical deductions or inferences that can be drawn."
The judge acknowledged Strumolo's involvement in politics, but questioned whether Seitz, apart from the one vendor contract extension and price increase granted to Strumolo's company, ever took action "based on Mr. Strumolo's desire." In later explaining to the jurors why he had granted JNOV and nullified their verdict on count two, the judge advised them that "as a matter of law merely saying by one person involved in a contractual setting I'm so angry at this person I think she should go is not enough to meet the concept of malice."
Having performed our own de novo review of the trial evidence in light of the substantive legal standards for tortious interference, we part company with the trial judge's assessment. We conclude that under the test of Dolson and its progeny, the evidence, viewed most favorably to plaintiff as the party opposing the JNOV motion, and giving plaintiff "the benefit of all inferences which can reasonably and legitimately be deduced therefrom," could rationally sustain the jury's finding of tortious interference. Dolson, supra, 55 N.J. at 5 (citations omitted). For the reasons we shall explain, the sufficiency of plaintiff's proofs on count two is a matter as to which "reasonable minds could differ." Ibid. Hence, the verdict on that count should not have been disturbed.
We first emphasize that it is important to differentiate between Strumolo's maintenance contract with the District and plaintiff's individual contract of employment as a District employee. To be sure, a claim of tortious interference does not apply to conduct that is solely directed to a defendant's own contract. Instead, the claim must entail "meddling into the affairs of another." Cappiello v. Ragen Precision Indus., Inc., 192 N.J. Super. 523, 529 (App. Div. 1984). Hence, we agree with the trial judge that Strumolo could not be liable for complaining about plaintiff, or for otherwise taking actions solely directed at advancing his own interests under his company's vendor contract with the District. Strumolo was forced to deal with plaintiff as the District's agent, and he was entitled to resist her demands on his company to the extent they were excessive.
However, a defendant's justification to engage in negative statements or actions about a plaintiff is overcome if the evidence shows that the defendant has maliciously gone further than promoting his business interests under his own contract. The legal justification vanishes if, as plaintiff contended here, the defendant endeavored to have plaintiff's own employment contract severed. Simply put, Strumolo had a legal right to protect his own interests, but he did not have a right to meddle in plaintiff's own contract and cause her to lose her job.
Defendants have framed the justification as a "qualified privilege." See Raymond v. Cregar, 38 N.J. 472, 480 (1962) (noting that it can be a defense to a claim of tortious interference to make statements or take actions that are harmful to a plaintiff's employment). However, as the Court noted in Raymond, such a qualified privilege is defeated if the defendant has acted with malice or ill motive. Ibid.
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Viewing the trial record, as it must be, in a light most favorable to plaintiff, there is sufficient circumstantial evidence to provide reasonable support to her claim that Strumolo went too far and successfully exerted his political and business clout in order to precipitate her discharge. Although Seitz and the two Board members who testified at trial emphatically denied that Strumolo's desires played a role in causing plaintiff's non-renewal, other testimony from Erday and Wendolowski (and, to some extent, Strumolo himself) provide evidential counter-support for plaintiff's theme that Strumolo had made it very clear that he wanted her discharged and that he endeavored to make that occur.
For example, Erday testified that Strumolo told him that plaintiff would not "be there [in her job] long." More pointedly, Erday testified that Strumolo proclaimed to him that "he was going to make it [i.e., plaintiff's departure] happen through his relationships with people in the town and on the [B]oard." Strumolo also reportedly told Erday that plaintiff's tenure was going to be "very short."
Wendolowski's testimony echoed that proof, as she noted that Strumolo had directly expressed to her not only "his frustration with [plaintiff]" but also stated that "this woman has to go." Plaintiff, meanwhile, testified that Strumolo had made a point of stating during his very first meeting with her that he knew people on the Board.
We recognize that plaintiff did not uncover a proverbial "smoking gun" consisting of direct evidence that Strumolo personally urged Seitz or any of the individual Board members to discontinue plaintiff's services. In order for the jury's verdict to stand, however, such direct evidence of retaliation or interference is not necessary. It is well established that a claim or defense may be proven or disproven through circumstantial evidence as well as direct evidence. See, e.g., Wilson v. Amerada Hess Corp., 168 N.J. 236, 253-54 (2001); Model Jury Charge (Civil) 1.12J, "Direct and Circumstantial Evidence or Inferences" (2012) ("Evidence may be direct or circumstantial. . . . You may consider both direct and circumstantial evidence in deciding this case. The law permits you to give equal weight to both, but it is for you to decide how much weight to give to any evidence.").
The jury reasonably could have found Erday's testimony to be particularly credible, since Erday was not a party or a representative of a party in this case, and he was not a successor to Strumolo's vendor contract. Moreover, Strumolo's boastful remark could reasonably have been perceived by the jurors to be credible as a statement against interest, insofar as it may be considered an admission of a plan to exert improper political or personal pressure on the Board. See N.J.R.E. 803(c)(25). Indeed, given Strumolo's prominence in the community, his assertion to Erday that he would "make it [plaintiff's departure] happen through his relationships with people" was hardly far-fetched.
The testimony of Erday, Wendolowski, and plaintiff, coupled with (1) Strumolo's influential status as a former Township councilman and political party chairman, (2) his long-time relationship of over thirty years as a vendor for the District, and (3) his election to the Board only a few months after plaintiff's non-renewal provide, in combination, a reasonable circumstantial basis for the jury's conclusion that Strumolo's desire to end plaintiff's employment played a causative role in the Board's decision to discontinue her services.
Although the job performance concerns cited by Seitz in his testimony also may have been contributing factors in plaintiff's demise, the law does not require that a singular cause be the only factor in producing a result. See Komlodi v. Picciaro, ___ N.J. ___, ___ (2014); see also Model Jury Charge (Civil) 6.10, "Proximate Cause — General Charge to Be Given in All Cases" (1998). Indeed, our decision to reinstate the jury's verdict is consonant with the earlier decisions of the trial court to deny defendants' pretrial motion for summary judgment, and the denial of their subsequent motion at the close of the trial evidence for a directed verdict. The evidence was viewed in a light most favorable to plaintiff at those earlier phases of the case, and a similar conclusion is warranted post-trial, based upon the evidence that was adduced.
We are mindful that plaintiff's theory that she was discontinued as Transportation Coordinator, at least in part, to appease Strumolo is somewhat undermined by the fact that the Board did adopt the contract specifications that she had recommended, and which made it impossible for Strumolo's business to continue as the District's maintenance provider. In rendering his ruling on the JNOV motion, the trial judge alluded to the fact that the Board's decision concerning those specifications was adverse to Strumolo's business interests.
Nevertheless, the Board's change of specifications may have been unavoidable as a practical matter, once the state inspections had revealed so many problems and taken so many buses out of service. Conceivably, the Board members may have considered the discontinuation of plaintiff's contract to be an offsetting courtesy, one which it granted to a powerful former councilman and long-time vendor who chose not to rebid on his own contract once the specifications were changed. Whether such a courtesy was, in fact, purposely extended - or not - was left to the jurors' factual assessment, and their evaluation of the credibility of the witnesses who testified before them. Under the circumstances, the jury's decision on count two should not be second-guessed.
We make no finding ourselves as to whether Strumolo did, in fact, improperly endeavor to cause plaintiff to lose her job. The trial court appropriately sent that issue to the jury. All we have decided is that the trial court should not have disturbed the jury's factual conclusion finding such improper interference.
The verdict in favor of plaintiff on liability in count two is thus reinstated, and the order granting JNOV is reversed. A trial on damages shall proceed, after the parties are given an opportunity, if they wish, to update and supplement the discovery concerning damages. Toward that end, the trial court shall conduct a case management conference with counsel within thirty days of this opinion.
IV.
Lastly, we decline to address at this time the trial court's interlocutory order denying plaintiff's motion to strike the affirmative defense of non-mitigation. Plaintiff's efforts to secure and obtain alternative employment since the time of her non-renewal in November 2008 optimally should be considered as a whole, rather than piecemeal. The pertinent case law concerning mitigation in employment cases and the corresponding burdens of proof have recently been amplified, see Quinlan v. Curtiss-Wright Corp., 425 N.J. Super. 335 (App. Div. 2012), and there is now a new Model Jury Charge on the subject. See Model Jury Charge (Civil) 2.34, "Mitigation of Damages — Front Pay" (2013); see also Model Jury Charge (Civil) 2.33, "Wrongful Discharge; Mitigation of Economic Damages" (1993). Given the current posture of this case and the intervening passage of time, we think it best that the trial court give further consideration to the mitigation issues and the affirmative defense in a fuller context, in light of what emerges from supplemental discovery and in light of the more recent developments in the law.
Affirmed in part, reversed in part, and remanded for a trial on damages. 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