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Miller v. Community Medical Center


June 18, 2007


On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2275-01.

Per curiam.


Argued May 30, 2007

Before Judges Kestin, Graves and Lihotz.

Plaintiff David Miller appeals from a final judgment he obtained, following a jury trial, against defendants Community Medical Center and Saint Barnabas Health Care Systems for nominal damages in the amount of $3,500, and the order denying his motion for a new trial. In their cross-appeal, defendants contend that plaintiff's complaint should have been dismissed at the close of plaintiff's case. After reviewing the record and applicable law in light of the arguments advanced on appeal, we affirm.

This is the second time this matter is before us. In the first appeal, we noted plaintiff had alleged in his complaint that his employment as a nurse at defendant Community Medical Center had been wrongfully terminated in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. In our unpublished opinion dated May 6, 2005, we set forth the pertinent background information, including the contentions of the parties, and we incorporate those facts, by reference. We reversed the summary judgment entered in favor of defendants because we determined a rational jury could find that plaintiff's employment was terminated in retaliation for his whistle-blowing activities in violation of CEPA.

Plaintiff represented himself during the jury trial, which began on January 19, 2006. On February 2, 2006, after the jury rendered its verdict, the following colloquy occurred:

THE COURT: All right. Now, at this point the Judgment is in favor of the plaintiff in the amount of $3,500 for purposes of nominal damages.

Is there anything else that needs to come before the [c]court? First we'll start with Mr. Miller.

Mr. Miller?

MR. MILLER: Your Honor, I guess I was looking through the law last night -- and I could be mistaken about this -- but I was going through the CEPA Statute, and it refers to damages and what the [c]court can award. But I guess I'm mistaken by thinking the court can award something that the jury -- like, for example, it speaks about reimbursement of lost wages and things like that. You cannot do that because I didn't bring up those losses during trial; is that correct?

THE COURT: That's correct. That's correct. In other words, the lost wages, because that was not presented to the jury, the only thing the jury could give you at this point is nominal damages in these sets of circumstances.

MR. MILLER: Your Honor, it's just a simple matter. I thought all I had to do was prove the four legal elements of CEPA. Obviously I had no idea that I had to demonstrate to them my actual losses. Obviously from my conversation with you prior to the jury, I actually submitted to you a list of the damages that I was seeking. And I understand your position; you couldn't have told me during the trial, "Mr. Miller, before you rest your case, you know, you really ought to address this issue." I know that you couldn't do that.

On appeal, plaintiff candidly concedes he "did not introduce evidence of monetary losses at the appropriate time during the course of the trial." Nevertheless, he contends that he did not receive a fair trial, and the trial court erred in denying his motion for a new trial.

The verdict of a jury should not be set aside unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly appears that there was a miscarriage of justice under the law. Dolson v. Anastasia, 55 N.J. 2, 6-7 (1969); Baxter v. Fairmont Food Co., 74 N.J. 588, 598-99 (1977); Law v. Newark Bd. of Educ., 175 N.J. Super. 26, 37 (App. Div. 1980); see also R. 2:10-1. In this case, however, the record fully supports the verdict of the jury because plaintiff failed to offer any evidence of lost wages or other damages.

In addition, as indicated by the trial court, plaintiff's motion for a new trial was untimely. Plaintiff's notice of motion for a new trial was filed on March 31, 2006, almost two months after the jury rendered its verdict on February 2, 2006. Pursuant to R. 4:49-1(b), a motion for a new trial must be made within twenty days of the jury verdict and this time limit is nonenlargeable. R. 1:3-4(c) ("Neither the parties nor the court may, however, enlarge the time specified by . . . R. 4:49-1(b) . . . ."). Moreover, plaintiff's pro se status does not relieve him of his obligation to comply with our rules of procedure. State v. DuBois, 189 N.J. 454, 470 (2007); In re Estate of Schifftner, 385 N.J. Super. 37, 44 (App. Div.), certif. denied, 188 N.J. 356 (2006); Venner v. Allstate, 306 N.J. Super. 106, 110 (App. Div. 1997).

Based on our review of the record, we are satisfied plaintiff received a fair trial and the remaining arguments in support of his appeal, and defendants' cross-appeal, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(B), (C), (E).

Affirmed on the appeal and cross-appeal.


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