On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-4675-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker, Yannotti and LeWinn.
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.
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.
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.
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 ...