RUTH J. MEGARGEE v. STATE OF NEW JERSEY DEPARTMENT OF HUMAN SERVICES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0736-07T10736-07T1

RUTH J. MEGARGEE,

Plaintiff-Appellant/

Cross-Respondent,

v.

STATE OF NEW JERSEY

DEPARTMENT OF HUMAN SERVICES,

DON HEPNER and LYNETTE BUFF

O'DONNELL,

Defendants-Respondents/

Cross-Appellants.

________________________________________________________________

 

Argued November 18, 2008 - Decided

Before Judges Parker, Yannotti and LeWinn.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-4675-99.

Andrew Dwyer argued the cause for appellant/cross-respondent (The Dwyer Law Firm, attorneys; Mr. Dwyer, on the brief).

Vimal K. Shah argued the cause for respondents/cross-appellants (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Mr. Shah, of counsel and on the brief).

PER CURIAM

In these cross-appeals, plaintiff Ruth Megargee appeals from three orders: (1) an order entered on November 28, 2005 denying defendants' motion for judgment notwithstanding the verdict (JNOV) and directing a new trial on plaintiff's claim for failure to afford her an accommodation under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and denying plaintiff's motion for reconsideration of a prior order denying punitive damages; (2) the judgment entered on July 12, 2007 in favor of defendants dismissing plaintiff's claims with prejudice after a jury verdict of no cause for action; and (3) an order entered on September 10, 2007, directing plaintiff to pay $50 to defendants in taxed costs. Defendants Department of Human Services (DHS) and Lynette Buff O'Donnell (O'Donnell) cross-appeal from the November 28, 2005 order. We affirm.

I

The facts relevant to this appeal are as follows. Plaintiff worked as a special education teacher with DHS teaching developmentally disabled children. Defendant Don Hepner (Hepner) was a regional administrator for the DHS Office of Education. O'Donnell was plaintiff's supervisor.

Plaintiff alleged that she was disabled within the meaning of the LAD as a result of a back injury incurred on the job in 1992. She contended, among other things, that O'Donnell denied her request for an accommodation on November 5, 1997, and, as a result, she incurred further injury.

On November 5, 1997, plaintiff was teaching homebound students when O'Donnell called her to the classroom because there were not enough teachers to cover all of the assignments. O'Donnell assigned plaintiff to classroom 107 and plaintiff objected because R.P. was a student in that classroom. R.P. was twenty-two years old, weighed between 200 and 250 pounds and had a mental capacity of eighteen months to two years. Plaintiff claimed that a few weeks prior to November 5, 1997, R.P. caused her to injure her back while she was working with him in room 107. Plaintiff told O'Donnell she wanted to be assigned to a different room to avoid further injury. O'Donnell said the teacher in the other classroom had been with those students and had developed an ongoing relationship with them. Plaintiff alleged that after O'Donnell denied her request she went to work in room 107 and her back was further injured when R.P. stood up suddenly while she was changing his diaper, causing her to hit the wall.

After a twenty-two day trial in 2005, the jury rendered a verdict, finding that plaintiff was disabled within the meaning of the LAD when she sought the accommodation on November 5, 1997; that DHS knew she was disabled and did not make a good faith effort to accommodate her disability. The jury did not, however, find that O'Donnell or Hepner were liable for failing to make the accommodation. The jury awarded plaintiff $276,000 in damages. On June 6, 2005, the trial court entered judgment for that amount in plaintiff's favor.

On September 16, 2005, the court heard argument on defendants' JNOV motion. The court granted a new trial as to both DHS and O'Donnell, but not Hepner, on the issue of failure to accommodate plaintiff's request on November 5, 1997. On November 28, 2005, the order was entered memorializing the court's decision to deny JNOV but grant a new trial.

We denied plaintiff's motion for leave to appeal on January 12, 2006. The second trial on liability only proceeded over ten days in June 2007. This time, the jury returned a verdict in favor of defendants on plaintiff's 1997 failure to accommodate claim, finding that plaintiff failed to prove by a preponderance of the evidence that she was disabled on November 5, 1997 within the meaning of the LAD.

On July 13, 2007, the trial court entered judgment dismissing all of plaintiff's claims with prejudice. On September 10, 2007, the court rendered a written decision addressing defendants' request for $10,545.95 in counsel fees and costs and ordered plaintiff to pay defendant $50 of those costs.

II

In the 2005 trial, the evidence of plaintiff's 1992 injury consisted of the workers' compensation settlement of that claim, which referred to 22.5% partial permanent disability; the testimony of plaintiff's family physician who treated plaintiff for the 1992 injury; and plaintiff's testimony. Plaintiff presented no expert testimony regarding her 1992 injury or any permanency resulting from it.

In granting defendants' motion for a new trial in 2005, the court determined that (1) the workers' compensation settlement document was improperly admitted into evidence; and (2) the verdicts finding DHS liable but exonerating O'Donnell were inconsistent. Consequently, in the 2007 trial, plaintiff was precluded from presenting the workers' compensation settlement document in evidence.

III

In this appeal, plaintiff argues:

POINT ONE

THE TRIAL COURT ERRED IN OVERTURNING THE 2005 VERDICT

A. The Trial Court Exceeded Its Limited Authority To Grant A New Trial

B. There Was No Inconsistency In The Jury's Finding That The Employer Was Liable Under The Law Against Discrimination, While Finding That An Individual Supervisor Was Not Liable

C. The Workers Compensation Award Was Properly Admitted As Evidence Of Plaintiff's Disability

POINT TWO

SEVERAL LEGAL ERRORS TAINTED THE 2007 RE-TRIAL

A. The Trial Court Improperly Excluded Findings From The Workers Compensation Court Tending To Show That Plaintiff Is Disabled

B. The Trial Court's Order Excluding All Evidence Of Plaintiff's Damages Denied Plaintiff A Fair Trial

C. The Trial Court's Narrow Charge On The Meaning Of "Disability" Denied Plaintiff A Fair Trial

D. The Trial Court Improperly Excluded Critical Evidence Regarding Defendant O'Donnell's Credibility

In their cross-appeal, defendants argue:

POINT ONE

PLAINTIFF'S FAILURE TO PROVIDE EXPERT MEDICAL EVIDENCE OF HER DISABILITY IN THE 2005 TRIAL WARRANTED JUDGMENT FOR DEFENDANTS

POINT TWO

THE TRIAL COURT IMPROPERLY VACATED [THE] 2005 TRIAL VERDICT IN FAVOR OF O'DONNELL

POINT THREE

THE 2005 JURY'S INCONSISTENT VERDICTS [WARRANTED] JUDGMENT FOR DHS

POINT FOUR

THE TRIAL COURT SHOULD HAVE GRANTED COLLATERAL ESTOPPEL EFFECT TO THE FINDINGS OF THE OAL, WHICH WOULD HAVE WARRANTED JUDGMENT FOR DEFENDANTS

A. OAL's Decision & This Court's Affirmance

B. OAL's Findings Satisfy Collateral Estoppel Elements

IV

With respect to the trial court's granting a new trial in 2005, plaintiff argues that: (1) the trial court exceeded its authority; (2) there was no inconsistency in the jury's finding that the employer was liable under the LAD but the individual supervisor was not; and (3) the workers' compensation settlement was properly admitted as evidence of plaintiff's disability.

There are different standards with different scopes of review for considering motions for JNOV and for a new trial. Judge v. Blackfin Yacht Corp., 357 N.J. Super. 418, 424 (App. Div.), certif. denied, 176 N.J. 428 (2003). "The standard for JNOV is the same as for involuntary dismissal at the close of evidence under R. 4:37-2." Ibid. (citing Pressler, Current N.J. Court Rules, comment on R. 4:40-2). The test for JNOV, therefore, is

[W]hether "the evidence together with the legitimate inferences therefrom could sustain a judgment in . . . favor" of the party opposing the motion; i.e., if, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied.

[Dolson v. Anastasia, 55 N.J. 2, 5 (1969) (citations omitted).]

When the evidence will not justify JNOV, the trial court may grant a new trial. Id. at 5-6; Judge, supra, 357 N.J. Super. at 424. On a motion for a new trial, the trial judge must

canvass the record . . . to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict . . . ." [T]he trial court takes into account, not only tangible factors relative to the proofs as shown by the record, but also appropriate matters of credibility, generally peculiarly within the jury's domain, so-called "demeanor evidence," and the intangible "feel of the case" which he [or she] has gained by presiding over the trial.

[Dolson, supra, 55 N.J. at 6 (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962)).]

The standard of review of such a motion is whether "'it clearly and convincingly appears that there was a miscarriage of justice under the law.'" Ibid.; Velop, Inc. v. Kaplan, 301 N.J. Super. 32, 48 (App. Div. 1997), appeal dismissed, 153 N.J. 45 (1998). Here, the trial court found two reasons for granting a new trial: (1) an inconsistent verdict; and (2) insufficient medical evidence to demonstrate that plaintiff was disabled on November 5, 1997 to warrant an accommodation.

"The failure to accommodate is one of two distinct categories of disability discrimination claims." Tynan v. Vicinage 13 of Superior Court of N.J., 351 N.J. Super. 385, 397 (App. Div. 2002). Under the LAD, an employer "'must make a reasonable accommodation to the limitations of an employee or applicant who is a person with a disability, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business.'" Soules v. Mount Holiness Mem'l Park, 354 N.J. Super. 569, 576-77 (App. Div. 2002) (quoting N.J.A.C. 13:13-2.5(b)).

A prima facie case for failure to accommodate requires proof that: (1) the plaintiff had an LAD handicap; (2) he or she was qualified to perform the essential functions of the job, with or without accommodations; and (3) he or she suffered an adverse employment action because of the handicap. Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 91 (App. Div. 2001).

In Tynan, we explained:

An employer's duty to accommodate extends only so far as necessary to allow "a disabled employee to perform the essential functions of his job. It does not require acquiescence to the employee's every demand." Vande Zande v. State of Wis. Dep't of Admin., 851 F. Supp. 353, 362 (W. D. Wis. 1994), aff'd, 44 F.3d 538 (7th Cir. 1995); Jones v. Aluminum Shapes, [Inc.,] 339 N.J. Super. [412,] 428 [(App. Div. 2001)]. See 42 U.S.C. 12111(9)(B) (establishing examples of reasonable accommodations including "job restructuring, part-time or modified work schedules, reassignment to a vacant position"). If an employer reasonably determines that an employee because of a handicap cannot presently perform the job even with an accommodation, then the employer need not attempt reasonable accommodation. E.g., Svarnas v. AT&T Communications, 326 N.J. Super. 59, 74-75 (App. Div. 1999).

[351 N.J. Super. at 397.]

We further noted in Tynan that in contrast to federal law, "the LAD definition of 'handicapped' does not incorporate the requirement that the alleged handicapping condition result in substantial limitation of a major life activity." Ibid. We stated:

[T]he LAD defines [a] "handicapped" person in relevant part as one suffering from a "physical disability, infirmity . . . which is caused by . . . illness, or from any mental, psychological or developmental disability . . . which prevents the normal exercise of any bodily or mental functions or is demonstrable, medically or psychologically by accepted clinical or laboratory diagnostic techniques." N.J.S.A. 10:5-5(q). Because the purpose of the LAD is "to secure to handicapped individuals full and equal access to society, bounded only by the actual physical limits that they cannot surmount," the Act besides being quite broad must also be liberally construed. Andersen v. Exxon Co., 89 N.J. 483, 495 (1982).

[Id. at 398.]

Plaintiff argues that the verdicts finding DHS liable but not O'Donnell were consistent because the jury would have had to find that O'Donnell was an "aider and abettor" under N.J.S.A. 10:5-12(e) in order to find her liable. Plaintiff relies on Failla v. City of Passaic, 146 F.3d 149 (3rd Cir. 1998), and Tarr v. Ciasulli, 181 N.J. 70 (2004) in which the aiding and abetting standard was articulated. In Failla, the Third Circuit stated:

Employees are not liable as aider[s] and abettor[s] merely because they had some role, or knowledge or involvement. Rather, the degree of involvement, knowledge and culpability required as a basis for liability is heightened by the standard that the Restatement [(Second) of Torts (1979)] sets forth and we adopt. Only those employees who meet this heightened standard will be aiders and abettors. It is important that this standard be set above mere knowledge and/or implementation, lest a reverse respondeat superior liability could be created under the guise of aiding and abetting.

[Failla, supra, 146 F.3d at 159.]

In Tarr, our Supreme Court noted:

the Restatement definition [of aider and abettor] is consistent with the common usage of those terms. Thus, in order to hold an employee liable as an aider or abettor, a plaintiff must show that "'(1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; [and] (3) the defendant must knowingly and substantially assist the principal violation.'" Hurley [v. Atlantic City Police Dep't], 174 F.3d [95,] 127 [(3d Cir. 1999), cert. denied, 528 U.S. 1074, 120 S. Ct. 786, 145 L. Ed. 2d 663 (2000)] (citations omitted).

[181 N.J. at 84.]

Plaintiff maintains that since O'Donnell acted independently, not as an aider or abettor, in denying her request for an accommodation, the verdicts were consistent.

Plaintiff further contends that if the jury found that O'Donnell simply did nothing in response to plaintiff's request, DHS was liable but not O'Donnell and the verdicts were, therefore, consistent. Plaintiff maintains that this outcome would be consistent with Bonitsis v. N.J. Inst. of Tech., 363 N.J. Super. 505 (App. Div. 2003), rev'd on other grounds, 180 N.J. 450 (2004), in which we held that the plaintiff's claim against the institution for failure to accommodate could go to the jury, but that the aiding and abetting claim against the university president should be dismissed. Defendants correctly respond, however, that liability in Bonitsis was not premised solely on the conduct of one managerial employee, but on tangential conduct not deemed sufficient for liability.

We agree with the trial court's finding in this case that O'Donnell's sole involvement in denying plaintiff's accommodation request does not satisfy the LAD aider and abettor standard. Thus, O'Donnell could only have acted as an agent of DHS resulting in liability for both her and her employer. In finding DHS liable for failing to accommodate plaintiff but not O'Donnell, the verdicts were inconsistent and irreconcilable, and a new trial was warranted. Mercedes-Benz Credit Corp. v. Lotito, 328 N.J. Super. 491, 508 (App. Div.) (quoting Brendel v. Pub. Serv. Elec. & Gas Co., 28 N.J. Super. 500, 507 (App. Div. 1953)), certif. denied, 165 N.J. 137 (2000).

The trial court further determined that a new trial was warranted because plaintiff's workers' compensation settlement was improperly admitted into evidence. Plaintiff claims that the settlement is sufficient proof of her disability from her 1992 injury to have warranted an accommodation in 1997. We disagree.

The workers' compensation settlement was dated 1994. In granting the new trial, the court noted that the settlement had a "great capacity to mislead and confuse the jury in relation to the . . . claim that [plaintiff] was disabled" at the time she requested the accommodation in November 1997.

In our review of the record from the 2005 trial, we find no medical evidence of plaintiff's condition in 1997. Even if we take the settlement document at face value, it is not an adjudication that plaintiff had a permanent partial disability. Rather, the judge of compensation signed an order of settlement which related back to 1992. Without medical testimony as to plaintiff's condition in November 1997, there was no connection between the 1992 injury and the 1997 request for accommodation. We are satisfied that the trial court correctly ordered a new trial after the jury's verdict in 2005.

V

Plaintiff claims that the trial court made several errors during the 2007 trial: (1) in improperly excluding findings from the workers' compensation court, which showed that plaintiff was disabled; (2) in excluding all evidence of plaintiff's damages; (3) in giving a narrow charge to the jury on the meaning of "disability;" and (4) in improperly excluding critical evidence regarding O'Donnell's credibility.

Throughout her brief, plaintiff characterizes the workers' compensation settlement as an "award" and claims that it should have been admitted into evidence as such. Plaintiff points to the record of the court of compensation for October 25, 1994, at which time the judge of compensation approved the settlement agreement. During that proceeding, however, the judge of compensation noted that the parties had stipulated to all of the jurisdictional facts and that the court adopted the "agreements of the attorneys just as if they were part of my own findings, leaving the only matter for my decision the fairness and justness of the proposed settlement between the parties." The court then recited the "objective medical findings in the reports of the orthopedic experts on both sides" and concluded that "this is a fair settlement" based upon the experts' reports. Consequently, the findings of the compensation court were never adjudicated. The settlement was approved because the parties agreed to it.

We note initially that "a trial court's evidentiary rulings are 'entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). On appeal, the decision should stand unless "so wide of the mark that a manifest denial of justice resulted." State v. Kelly, 97 N.J. 178, 216 (1984).

Plaintiff relies on Lefkin v. Venturini, 229 N.J. Super. 1 (App. Div. 1998), in arguing that a determination in a workers' compensation action can be binding in a subsequent proceeding. Here, however, plaintiff was attempting to rely on a settlement, rather than an adjudication of her workers' compensation claim. The trial court correctly precluded the settlement because it did not prove that plaintiff was disabled in 1997 within the meaning of the LAD. As the trial court noted, the standards for disability under the LAD differ from those under the workers' compensation laws. The trial court found that those distinctions would be too confusing for the jury, in the absence of medical expert testimony on plaintiff's alleged disability in 1997. We agree.

In short, the 1994 workers' compensation settlement was not binding on defendants in 1997, nor was it admissible in evidence because it was the result of a settlement agreement, not an adjudication, and was not based on the same definition of a disability or handicap as the LAD.

Plaintiff next argues that the trial court erred in excluding evidence of plaintiff's damages. The new trial was granted on liability alone. The court determined that the matter would be tried on liability for the alleged failure to accommodate on November 5, 1997. If liability were found, the parties would brief the issue of whether a new damages trial was necessary. Plaintiff's counsel objected to this procedure, claiming that it would prejudice plaintiff's ability to present the case and schedule witnesses. The trial court, however, relying on Rule 4:38-2(b), ordered the bifurcation because it would save the court and the parties a substantial amount of time.

Plaintiff maintains that the bifurcation allowed defendants to suggest that no injury had occurred. She contends that defense counsel's summation implied that nothing plaintiff said at trial could be believed and that plaintiff was not credible. Plaintiff further argues that defense witness, Brenda Jarmon, suggested to the jury that plaintiff lied about being injured by R.P. on November 5, 1997. Plaintiff's injury in 1997, however, had no bearing on liability because the alleged injury occurred after the alleged failure to accommodate.

Moreover, plaintiff did present evidence of the injury because the trial court permitted her to explain that she was in an impaired condition after the accident and did not remember completing the accident form. Plaintiff was permitted to read O'Donnell's notation on the accident form, which stated: "Ruth was unable to complete the report. She was taken to E.R. by 9-1-1 staff on a back board." Plaintiff then testified that she agreed with O'Donnell's assessment that she was too injured to complete the form that day. She further testified that she was in a lot of pain and hurt everywhere. The trial court also advised the jury that the parties had stipulated that plaintiff received sick leave injury benefits from the injuries sustained that day and could consider that fact.

We are satisfied that the trial court properly precluded more extensive testimony regarding plaintiff's injury. The jury knew from plaintiff's testimony and the stipulation that she had incurred an injury as a result of the alleged failure to accommodate. In a liability-only trial, the trial court correctly precluded further evidence of damages.

Plaintiff next argues that the trial court's jury charge on the meaning of "disability" denied her a fair trial. She claims that defense counsel misrepresented the definition under the LAD in summation by quoting only selected impairments listed in the definition, and that the court erred in failing to instruct the jury on the expanded definition of disability as she had requested. We disagree.

In his summation, defense counsel stated:

First, she hasn't proved that she was disabled within the meaning of the Law Against Discrimination, right before the November 5, 1997 accident.

As you're going to see in the jury instructions, the definition of disabled under the Law Against Discrimination requires more than simply being diagnosed with a condition, it requires that the condition impair the individual's ability to function to some degree. The types of impairments listed in the statute and you'll see it in the jury instructions include any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediments, deafness or hearing impediments, muteness or speech impediments, or physical reliance on a service of guide dog, wheelchair or other remedial appliance or device. All impairments of functions.

Plaintiff didn't have any of these impairments on November 5, 1997. As she herself gave in sworn testimony, which is this testimony, she was symptom free and fully recovered. And as she said in the other sworn testimony, she engaged in numerous strenuous activities, both inside and outside of work prior to the 1997 accident.

The inside work she lifted kids out of wheelchairs, she lifted them onto changing tables, she lifted them into position (indiscernible) and as the video showed, that is hard work. You have to have a very strong back to do that work.

Outside of work, as I mentioned, she was biking, horseback riding, skiing, ice skating and, of course, remember the hike to the Grand Canyon which is either four miles down or seven miles down depending upon which version of Mr. Megargee's testimony [you believe].

A person able to do all those things and without symptoms has no impaired ability to function. So, right off the bat, you must deny her claim because she can't prove that she was disabled under the meaning of the Act.

During the charge conference, plaintiff's counsel argued that defense counsel misdirected the jury on the definition of disability and that "the jury should be told that a disability is not required to restrict any major life activities to any degree."

In its charge to the jury, the court stated:

The New Jersey Law Against Discrimination defines a disabled person as one who is suffering from physical disability, infirmity, malformation or disfigurement, which is caused by bodily injury, birth defect or illness, including epilepsy, and other seizure disorders and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment or physical reliance on a service or guide dog, wheelchair or other remedial appliance or device, or any mental, psychological, or developmental disability resulting from anatomical, psychological, physiological or neurological conditions which prevents the normal exercise of any bodily or mental functions, or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques. That's the definition that's contained in the statute which I've been referring to as the Law Against Discrimination.

In this case, plaintiff claims that she suffered from a lower back condition on November 5th, 1997 and that defendants failed to accommodate her on November 5th, 1997. To prove that she is disabled under the Law Against Discrimination, plaintiff must prove that she is one, suffering from a physical disability, infirmity, malformation, or disfigurement caused by bodily injury, birth defect or illness. Excuse me, I should not have said one.

The term disabled under the Law Against Discrimination is defined broadly and it is not restricted to severe or immutable disabilities. In order to prevail on her claim, based upon the November 5th, 1997 incident, plaintiff must prove by a preponderance of the credible evidence that she suffered from a disability on November 5th, 1997 and a disability within the meaning of the Law Against Discrimination. To examine this - to answer this question, you have to examine the proofs in light of the definition of disability I've just given you. Whether she had a disability in 1997, on November 5th, 1997 is in dispute and you're going to have to make that determination based upon the evidence.

If the plaintiff fails to prove by a preponderance of the credible evidence that she had a disability within the meaning of the Law Against Discrimination on November 5th, 1997, you must enter a verdict for the defendants, on plaintiff's failure to accommodate claim and your inquiry ends here.

[Emphasis added.]

Plaintiff maintains that under the case law, a plaintiff is not required to prove any limitation on life activities or physical capabilities in an LAD claim and that the jury should have been so instructed. She relies on N.J.S.A. 10:5-5(q), which lists various conditions that can qualify as a disability.

N.J.S.A. 10:5-5(q) states in its entirety:

"Disability" means physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness including epilepsy and other seizure disorders, and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment or physical reliance on a service or guide dog, wheelchair or other remedial appliance or device, or any mental, psychological or developmental disability resulting from an anatomical, psychological, physiological or neurological conditions which prevents the normal exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques. Disability shall also mean AIDS or HIV infection.

[Emphasis added.]

Plaintiff focuses on the "but not limited to" language in the statute, arguing that the court should have provided an expanded definition of disability as she had requested.

The trial court's charge to the jury mirrored the statute in its recitation of the disabilities included in the LAD and included the "but not be limited to" language. The language plaintiff wanted to include in the charge was simply not warranted by the facts of the case. Moreover, we find nothing in defense counsel's summation that misrepresented the definition of disability in the LAD or misdirected the jury. The court's charge to the jury properly defined disability in accordance with the statute.

Finally, plaintiff claims that the trial court improperly excluded critical evidence regarding O'Donnell's credibility. Plaintiff sought to introduce sworn statements by DHS personnel that "O'Donnell ha[d] lost her ability to function in her office with the full faith, trust and confidence of the Department of Human Services, Office of Education, and good cause exists to suspend Ms. O'Donnell without pay pursuant to N.J.S.A. 18A:60-2." O'Donnell's suspension resulted from her alleged falsification of student evaluations and parent letters.

Relying on Delgaudio v. Rodriguera, 280 N.J. Super. 135, 141 (App. Div. 1995), plaintiff argues that where a government body has expressed an official opinion that a witness is not trustworthy, that opinion is admissible to impeach the witness's credibility. Delgaudio was a medical malpractice case in which the defendant doctor made deliberate misstatements in his patient records and the State Board of Medical Examiners found that the accuracy of his medical records was the central issue in the case. Id. at 144. Here, plaintiff's failure to accommodate claim did not hinge on the accuracy of O'Donnell's student evaluations.

The trial court held a hearing pursuant to N.J.R.E. 104 during which five DHS employees involved in O'Donnell's termination testified. Two of them testified that they did not know O'Donnell well enough to form an opinion and three testified that O'Donnell was a truthful person. Nevertheless, plaintiff contends that the testimony of these witnesses should have been admitted to impeach O'Donnell's credibility.

At the conclusion of the Rule 104 hearing, the trial court

noted that one of the DHS witnesses, Patricia Gerew, testified

that she believed that the falsification of [the] records was a dishonest act and a bad act and a wrong act, but that Ms. O'Donnell did not lose Ms. Gerew's full faith, trust and confidence as a result of this incident. Ms. Gerew testified [that] it was a wrong and serious mistake and a reflection of bad judgment but I didn't see that overall in her performance."

The court found that Gerew's testimony was "too connected to the specific bad act and [did not] directly go to the character for truthfulness." Accordingly, the court denied plaintiff's application to call Gerew as a witness to impeach O'Donnell's credibility.

Our Supreme Court addressed the admissibility of character evidence in Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286 (2006), in which it explained:

An opinion witness offers a personal assessment of a prior witness' character based on his or her own perceptions. Contrariwise, a reputation witness restates the community's assessment of the subject's character. To the extent that there is an opinion in the reputation form of character evidence, it is the community's opinion, not that of the testifying witness.

[Id. at 309 (internal citations omitted) (emphasis added).]

The Court noted that N.J.R.E. 608 governs the admission of character evidence while testimony regarding a character trait is a form of lay opinion admissible under N.J.R.E. 701 and 602. Id. at 309-10.

[A] lay opinion regarding a prior witness' bad character for truthfulness will be admissible if it is founded upon the character witness' perceptions of the prior witness and will assist the jury in determining the fact in issue. There are no formal prerequisites for the admission of that testimony such as particularly long acquaintance or freshness of information. What is required is sufficient familiarity with the subject to form an opinion. As under the federal rule, under N.J.R.E. 608 "a trait of character cannot be proved by specific instances of conduct." Accordingly, at trial the proponent of a character witness is not permitted to inquire whether the witness knows about any specific instances of conduct to prove the trait in issue.

[Id. at 310-11 (internal citations omitted) (emphasis added).]

We are convinced that Gerew's testimony did not meet the Fitzgerald standard for admissibility, largely because it did not relate to the events of November 5, 1997 and was irrelevant to plaintiff's accommodation claim. Moreover, the events leading to O'Donnell's termination occurred in 2005-2006, well after the events relating to plaintiff's 1997 accommodation claim.

We have carefully considered plaintiff's remaining arguments and we are satisfied that they lack sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

(continued)

(continued)

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March 26, 2009