PER CURIAM.
Plaintiff Scott Jones filed suit against defendant South Jersey Industries, Inc. (SJI), doing business as South Jersey Gas Company, alleging wrongful termination from employment based on perceived disability and age discrimination in violation of the New Jersey Law Against Discrimination (LAD),
The following facts were developed during depositions and the trial, and are necessary to an understanding of the significance of the alleged errors. Plaintiff began working at SJI as a retail marketing sales representative in May 1985. In 1993, he became a Marketing Support Specialist, Commercial/Industrial, and in 1996 was promoted to Major Accounts Manager (MAM). He remained in this position, handling large commercial sales in Cape May and Atlantic Counties, until his termination on March 21, 2005.
MAMs market and maintain gas service accounts for large industrial and commercial customers. Plaintiff in fact completed a certification as a Registered Commercial Gas Consultant. MAMs are also responsible for generating new customers from businesses using other types of fuel, or "conversions." MAMs were expected to meet or exceed specified sales targets and were paid a base salary in addition to bi-monthly performance incentives.
In late 2001, Lawrence Lhulier became SJI's Director of Commercial, Major, and Residential Gas Sales. In January 2002, Victoria Molloy became SJI's Manager of Major Accounts and Commercial Sales, thus making her plaintiff's direct supervisor. Lhulier's compensation was tied in part to the sales achieved by the MAMs; Molloy's compensation was also contingent upon the sales performance of her group. Molloy, who reported directly to Lhulier, maintained routine contact with Human Resources (HR), copied HR on unfavorable employee reviews, and kept HR advised of performance issues.
South Jersey Gas Company is a subsidiary of SJI. Lhulier and Molloy were designated as "key management team members" in its gas sales management business segment. Lhulier ranked second behind the subsidiary's President and CEO. Molloy and two other sales division managers were third in rank in the corporate structure.
Commencing in early 2002, Molloy required MAMs in her group to submit their weekly call reports directly to her. She also increased the number of mandatory reports, requiring not only weekly call reports, but also monthly sales and project status reports.
Plaintiff considered the additional documents to be unnecessarily duplicative and time-consuming, detracting from time available for sales activities. He also believed that the company's software, installed in 2001 and designed to compile customer information, occasionally malfunctioned, resulting in late completion of his reports.
Molloy testified that, in 2002, her first year acting as plaintiff's direct supervisor, approximately seventy-five percent of her time was consumed by plaintiff's transactions. In large part, this was attributable to the construction of a sizeable hospital in his sales region, and the expectation that Molloy would assist plaintiff in acquiring the hospital as a customer. Her concerns about his performance developed almost immediately, as a hospital representative complained to Molloy in March of that year that the hospital was reconsidering its decision to use gas because of dissatisfaction with plaintiff's handling of the account. Molloy found herself "doing all the work," including holding meetings with the hospital and directing lengthy negotiations while plaintiff merely assisted. Eventually, the account was secured and plaintiff received a commission.
During the course of the hospital negotiations, plaintiff failed to respond to several of Molloy's e-mails or to attend meetings. Because plaintiff denied receiving the e-mails, Molloy began to track messages sent to him. None of Molloy's other sales representatives had difficulty in receiving her e-mails.
Although Molloy rated plaintiff as competent on his 2002 annual appraisal, she noted that he lacked knowledge in certain key areas and had issues with timeliness, initiative, and follow-through, observing that she had to "constantly remind [him] what need[ed] to be done."
On January 9, 2003, Molloy met with plaintiff to discuss problems in his job performance. She focused particularly upon his lack of initiative and follow-through, and the need for him to work on his conversions. Although she assured plaintiff that she would do whatever was necessary to ensure his success, she expected him to actively manage his time and employ his sales skills, while following through on commitments.
On April 8, 2003, Molloy e-mailed plaintiff requesting his end-of-the-month reports for March. She explained that his tardiness could affect his end-of-the-year incentives and reminded him that she should not have to request reports he was expected to generate as a matter of course. Molloy told plaintiff that henceforth she would not approve his expenses until all of his reports were received. She also noted he had not submitted a weekly call report since March 17.
On April 30, 2003, Molloy gave plaintiff both an oral and written warning regarding his performance, reiterating that she should not have to remind him of the need to follow through, and restating her concerns regarding his inattention to detail. She pointed out that she had invested seventy-five percent of her time on his accounts in 2002, and that she should not have to constantly "babysit him." Molloy described the email as a "verbal warning," and said "progressive discipline" would follow, including "reassignment or dismissal." At trial, plaintiff denied seeing this written warning, or receiving any verbal warning, claiming that Molloy only requested documentation on behalf of another MAM who was out on maternity leave.
In March and April 2004, plaintiff exceeded his sales goal by sixty-nine percent and his conversion goal by twenty percent. In May and June, plaintiff again exceeded his goals, by eighty-two percent for sales, and 190 percent generating leads for conversions. In August, Molloy pointed out that the actual connected load, or flow of gas being consumed by plaintiff's customers, did not match the number plaintiff claimed. That error was never corrected, and plaintiff had the same discrepancy each month thereafter.
On September 13, 2004, Molloy informed plaintiff that his sales results for July and August were unsatisfactory, under the fifty percent threshold, and he was therefore not entitled to any incentive pay for that time. In September and October 2004, plaintiff's performance improved: he achieved 191 percent of his sales goals, and seventy percent of his conversion goals.
On October 27, 2004, Molloy provided plaintiff with a mid-year performance assessment, with a copy to Lhulier. Overall, she reported he was an "[a]verage performer that display[ed] a desire and willingness to succeed," but needed to improve his organizational and time management skills and hold himself more accountable. She also noted that he needed to improve his connected load targets, having achieved only five percent of them, and improve his timeliness and his critical thinking.
The following day, Molloy forwarded an e-mail to plaintiff advising that his failure to supply a weekly call report in two months was in "blatant disregard for the [office] reporting procedures" and that these delays would "no longer be tolerated." The following day, plaintiff testified, he provided her with three reports, although Molloy denied receiving them.
On November 18, 2004, Molloy met with plaintiff and reprimanded him for, among other things, falling behind with his weekly call reports. Plaintiff claimed that, until this meeting, he had never been told that he was perceived as a poor performer as a result of his late submission of reports. Molloy told plaintiff that she was frustrated by "his performance, time management, follow-up," and inclusion of improper information in reports.
Plaintiff responded that he did not feel like himself and had problems at home that were interfering with his job. He had trouble focusing and thinking clearly, and lacked energy, feeling like he was continuously "in a fog."
That same date, Molloy gave plaintiff a summary intended to act as a written warning, reflecting that he had submitted only twenty-four of forty-five weekly reports, and had not updated his key account or other reports since August 2004. Plaintiff told Molloy that the software was not working properly, but assured her that he would improve. He disputed many of her other complaints, however, claiming that he had personal issues and had recently told his wife that things had to change at home, particularly with child care, or that otherwise his job was at risk.
Following the November 18 meeting, Lhulier contacted the HR department in an attempt to devise a performance improvement plan for plaintiff. The Director of HR, Sharon Pennington, assigned oversight of the situation to William Oxenford, the Employee Labor Relations Manager.
On November 30, 2004, Molloy noted plaintiff never received a commitment from a potential major customer, Snows-Doxsee, whose service order he commenced handling in September. Although no contracts with the customer were executed in that time period, plaintiff claimed them on his sales report.
On December 2, 2004, Molloy told plaintiff to revise certain reports which contained errors and discrepancies before he left the following day on a family vacation. Those corrections were never made.
On December 7, Lhulier requested that Molloy provide him with any documentation she had on plaintiff. Plaintiff's performance had not improved by the end of that month. In fact, his poor sales results caused the overall team performance to be an unacceptable forty-one percent. On December 29, 2004, Oxenford memorialized a proposal with respect to plaintiff, which involved providing him with a "60-day Get Well Plan" during his year-end evaluation.
Also on that date, plaintiff signed the written summary of the November 18, 2004 meeting, although at trial he only recalled that the meeting related to late call reports and no other issues. Molloy warned plaintiff that improvement had to be shown within one month and continue for twelve months, otherwise, "progressive discipline [would] be imposed with a recommendation for dismissal."
In a separate memo, Molloy noted that plaintiff's performance had worsened in key areas since his mid-year review in September. She complained that she had to have this same conversation with him every four to six months, which always resulted in a temporary improvement, but effectuated no long-term changes.
On January 3, 2005, Molloy discovered that plaintiff had requested vacation time for December 31, 2004, in contravention of an email sent on October 27 advising that last-minute holiday vacation requests would not be approved. Lhulier testified that Molloy perceived this as plaintiff challenging her authority and that the incident, effectively, was the last straw. The incident was minor, but plaintiff believed it caused Molloy to descend into a tirade.
In fact, plaintiff's recollection was that when confronted he apologized, told Molloy that he thought he was suffering from a loss of concentration, and said that he needed help. Intending to see a psychologist his wife had found for him, plaintiff begged her for ninety days, promising that he would get better. He claimed that Molloy said she would discuss this request with Lhulier and get back to him.
In any event, Molloy discussed plaintiff's situation with Lhulier, who contacted Thomas Worrell, the head of SJI's Employee Assistance Program (EAP). Worrell, a guidance counselor, not a psychologist, operated the EAP as an outside contractor.
Lhulier then called plaintiff, telling him that he was worried as he did not sound like himself. Plaintiff claimed that at this point he assumed Lhulier and others understood he was not entirely well, but admitted at trial that Lhulier said only that he did not sound like himself. Initially, even plaintiff did not consider depression as the explanation of his problems, suspecting instead that he might be developing early-onset senility, as had his mother.
According to plaintiff, Lhulier directed that he utilize the EAP rather than a private psychologist. In contrast, Lhulier explained that he lacked the authority to directly refer an employee to the EAP, but could reach out to HR on the employee's behalf. Oxenford further clarified that no employee was ever required to utilize the EAP; it was never a condition of employment. Neither Oxenford nor Lhulier considered the referral to be mandatory, although Worrell testified he believed that it was.
Pennington approved the referral, testifying that she was told plaintiff said he was "depressed at one point in time, or words to that effect." Pennington also testified that once an employee was referred to the EAP, SJI only wanted to know if progress was being made generally, as more detailed information would have been viewed as a violation of an individual's right of privacy. Plaintiff later claimed that he believed Lhulier and Oxenford were fully aware of his "fragile mental state."
Plaintiff, who assumed Worrell was trained to treat mental health problems, based in part on flyers in the building urging troubled employees to contact EAP for assistance, attended his first appointment on January 10. He expressed concerns about his frame of mind and job performance. Worrell administered diagnostic tests which suggested the presence of mild depression and anxiety. To the contrary, plaintiff testified that Worrell diagnosed him as depressed. He further stated he would not have gone to Worrell had he not believed Worrell could treat him for depression.
On the witness stand, Worrell denied diagnosing plaintiff as clinically or seriously depressed. Had that been his diagnosis, he would have referred plaintiff to a qualified therapist. Worrell stated that the cognitive behavioral therapy he offered employees was merely designed to assist them in improving work performance, and was not intended to address mental health needs.
Plaintiff signed a release authorizing Worrell to communicate with SJI regarding his contacts with EAP. Worrell testified, however, that the release only authorized informing SJI that plaintiff was participating; plaintiff testified that he signed it so that Worrell could share all relevant information with SJI. When deposed, Molloy stated that she believed plaintiff had been referred to the EAP because "he was suicidal."
On January 13, 2005, plaintiff met with Oxenford, Lhulier, and Molloy, who presented him with a "Get Well Plan" designed to address his timeliness, focus, and disregard for management requests. When, during the meeting, Lhulier expressed frustration and told plaintiff they were trying to wake him up, plaintiff promised to improve, albeit attributing his job issues to personal difficulties. He was warned that if he did not improve, he would be terminated.
Plaintiff's reporting requirements were increased to mandatory weekly schedules, including four sales calls daily, preparation of rate recommendations for load management for two major consumers, and the obligation to provide management with information within twenty-four hours of any request. Plaintiff and Molloy disagreed after the fact as to the extent and substance of the reports he was required to provide. Plaintiff explained that he did not know how to prepare load management reports, ordinarily created by engineers, whereas Molloy insisted that plaintiff was not told to prepare load management reports but, rather, rate recommendations for load management, which should have been within his field of competence. Furthermore, she claimed plaintiff never told her he did not know how to prepare these reports.
During the January 2005 meeting, plaintiff kept his head down, nodded but did not seem to be fully present, and failed to respond to offers of help. As Oxenford explained it, he did not appear engaged. At the end of the meeting, Oxenford heard plaintiff say words to the effect that he would kill himself, or that his wife would kill him. Lhulier heard plaintiff say something to the effect of "[o]h, I could just kill myself," or "[m]aybe I should kill myself," but was unsure whether it was said seriously or was merely an offhanded comment. Pennington recalled being told that plaintiff had made some comment about killing himself if he lost his job, but did not know if he meant something along the lines that his wife would kill him if he lost his job. When deposed, plaintiff did not recall using the word "suicide."
Oxenford sent a follow-up e-mail to Lhulier and Molloy, informing them that he had called Worrell to let him know about the final warning given to plaintiff. During that phone call, he recalled mentioning that plaintiff had used the word suicide with regard to his employment. He never followed up with Worrell, however, and never heard from him about plaintiff.
On the stand, Worrell denied ever being informed about any of SJI's concerns regarding plaintiff's mental condition. He added that had he been told, he would have checked in with plaintiff and perhaps called his wife as well. Worrell also said he would have been informed if plaintiff's job performance had not improved. He denied any contact from anyone at SJI about plaintiff's performance, any plans for improvement, or his compliance with SJI expectations.
Worrell discussed the January meeting with plaintiff the following day. Plaintiff said that he had no problems with his co-workers or superiors, and that he knew he had to make changes.
On January 21, 2005, eight days after the meeting, Molloy presented plaintiff with a "Last and Final Warning" memo, which Pennington had approved. It reiterated the requirements of the Get Well Plan. Plaintiff claimed that it incorrectly asserted he had failed to meet certain requirements, although during the meeting he had not disputed any of the observations about his job performance. The memo enumerated the six areas of deficiency identified and discussed at the meeting, and warned that plaintiff would be terminated if he did not improve. Plaintiff signed this final warning.
Ten days later, on January 31, 2005, Molloy issued plaintiff's 2004 evaluation, prepared on December 22, 2004, which classified him as unsatisfactory. Plaintiff did not agree with these negative assessments, and testified he had never been told of anything along these lines in his prior twenty years at the company.
A comparison of end-of-year connected sales showed that plaintiff met only seventeen percent of his goal, only five percent over the first six months. Other MAMs and commercial representatives met significantly higher percentages of their goals. Over the next couple of months, plaintiff's performance and Molloy's assessment appeared equivocal. Ultimately, on March 21, 2005, plaintiff was terminated. When Molloy was later promoted and transferred, she shredded many documents prior to moving to her new office, inadvertently destroying or discarding the field sales file which documented her observations of the MAMs.
It is clear that a confused picture emerged during the course of the trial as to whether other MAMs were expected to meet the same requirements as plaintiff, or the extent to which management understood plaintiff's condition, if at all. Pennington, for example, who approved plaintiff's termination, outright asserted that no one at SJI knew plaintiff was depressed. Yet, she also claimed that she called Worrell to inform him of the termination because she was concerned about plaintiff's emotional state. Despite the fact that his wife stated plaintiff was "devastated" after the firing, plaintiff obtained a new job approximately one month later. Two weeks after termination, plaintiff spoke on the phone with a psychologist, James D. Herbert, Ph.D., and reported feeling disconnected. Dr. Herbert suggested a possible diagnosis of depression and scheduled an intake for April 7, 2005. At the intake, plaintiff told Dr. Herbert that his feelings of being in a fog had worsened in the last year and a half, and he discussed his job performance problems as well as mood swings. Dr. Herbert saw plaintiff again on April 13, after which plaintiff failed to follow through with the assessment process and did not initiate treatment.
Plaintiff testified that he began taking medication in late 2005. He met with Richard A. Kader, D.O., and was diagnosed with depression on November 2, 2006. Plaintiff was still taking medication at the time of trial in 2009.
Plaintiff's mental health expert witness was David J. York, Ph.D., a clinical psychologist. He testified plaintiff had been depressed at the time his job performance deteriorated and he was terminated. Dr. York viewed extensive documents and records, including plaintiff's deposition, but never met with plaintiff. Based on this review, he opined that plaintiff "was suffering from a major depressive episode" as of November 2004.
During his testimony, Dr. York said that: Molloy and Lhulier were aware that plaintiff felt he was in a fog; that plaintiff asked Molloy for ninety days, which might have been a request for an accommodation of his disability; that Molloy believed plaintiff was reaching out for help; that Oxenford was aware that plaintiff mentioned suicide at the January 14 meeting and was not responsive to the statement; that Lhulier and others in the workplace had noticed a change in plaintiff over a six-month period; that Oxenford reported the "suicide comments" to Worrell; and that Worrell's evaluation was inadequate and he should have referred plaintiff to a licensed professional. Dr. York also said Worrell improperly concluded plaintiff was depressed because of his poor performance in the workplace, rather than considering that the depression may have been causing the poor performance. Dr. York stated that Molloy mistakenly attributed plaintiff's depressed behavior to plaintiff's fear of losing his job, essentially telling the jury that plaintiff's supervisors vacillated between concern about him and a failure to recognize the import of his actions and statements.
In fact, Dr. York contended that either Molloy, or Oxenford, or both, lied about the events leading to the termination, based on discrepancies he believed existed in the documents he reviewed. Dr. York considered it inconsequential that SJI had not been informed of testing outcomes by Worrell, or that plaintiff did not learn that he was suffering from depression until approximately a year and a half after his termination.
Although the trial judge indicated he would conduct a jury charge conference, we have not been directed to one, nor have we been able to locate one in the trial transcripts. Over SJI's objection, the court instructed the jury as to reasonable accommodation for a disability, and included questions regarding reasonable accommodation on the verdict sheet. SJI objected because plaintiff had not alleged a failure to accommodate in the complaint, and SJI's defense was that plaintiff was terminated because of poor job performance. As we will discuss later in greater detail, even the trial judge agreed when he denied SJI's application for a new trial that the issue should therefore not have been presented to the jury.
In significant respects, the instruction given to the jury did not track the model jury charges. For example, instead of the standard instruction regarding expert testimony, the court referred to the expert's testimony at the end of the charge regarding credibility. He told the jury:
The above was the full extent of the jury charge regarding the expert's testimony. No limiting instruction was given, either at the time Dr. York testified or in the closing charges, regarding Dr. York's references in his testimony to hearsay, his discussion of the credibility of other witnesses, or characterization of plaintiff's request to his employers for ninety days to improve his performance as being a request for reasonable accommodation.
SJI submitted a proposed jury charge as to reasonable accommodation under protest. It objected throughout the trial to any testimony in that regard, since reasonable accommodation was not pled and it asserted as its principal defense that the employee in this case "was terminated for legitimate, nondiscriminatory reasons."
During deliberations, the jurors asked a number of questions regarding reasonable accommodation. Ultimately, the jury determined plaintiff was terminated for a discriminatory reason and awarded the damages previously described, but never reached the questions on the verdict sheet regarding reasonable accommodation.
In evaluating cases brought under the LAD, New Jersey "courts have adopted the burden-shifting framework articulated in"
At that point, the burden shifts to the employer "to articulate a legitimate, non-discriminatory reason for the adverse employment action."
SJI asserts that Dr. York's testimony regarding reasonable accommodation prejudiced the outcome, that the court erred in charging reasonable accommodation, and that these errors alone constitute a basis for judgment notwithstanding the verdict or a new trial. We agree.
Reasonable accommodation is relevant where:
In this case, however, plaintiff did not plead reasonable accommodation. SJI's entire defense to this LAD complaint was that plaintiff was terminated for legitimate, nondiscriminatory reasons, not because any alleged disability rendered him unable to perform his job. Thus, reasonable accommodation was not an issue and should not have been mentioned by Dr. York nor explained to the jury as a possible basis for recovery. Although the trial court agreed with SJI on this score in its written decision denying SJI's motion for a new trial, it nonetheless took no curative action as a result.
Plaintiff contends that
This argument is misplaced, however, as
The
When SJI reiterated its objection to the instruction to the jury about reasonable accommodation, the trial judge responded:
During deliberations, the jury sent out several written questions related to reasonable accommodation, including whether: (1) management or HR ever suggested or recommended medical disability leave or a leave of absence; (2) if management was aware of plaintiff's depressed mood and why, if it played a part in the decision to terminate, he was not offered temporary disability; (3) whether management discussed the option of allowing plaintiff "time to receive treatment from a mental health professional"; (4) whether plaintiff ever requested time off to resolve his problems or management granted plaintiff's request for ninety days; and (5) if plaintiff had requested sick leave or leave with pay in order to receive treatment, it would have been approved.
The jury did not reach these issues. But the questions it asked indicated that lengthy discussions about reasonable accommodation occurred during deliberations.
"It is axiomatic that clear and correct jury charges are essential to a fair trial, and the failure to provide them may constitute plain error."
In general, "an appellate court will not disturb a jury's verdict based on a trial court's instructional error `where the charge, considered as a whole, adequately conveys the law and is unlikely to confuse or mislead the jury, even though part of the charge, standing alone, might be incorrect.'"
We do not doubt that the jury believed, based on Dr. York's statements and the jury instruction on the subject of reasonable accommodation, that the issue was a subject it should consider. This jury instruction could well have misled or confused the jury with respect to their deliberations about the claims which were properly pled.
In accordance with Rule 4:49-1(a), new trial motions should be granted where, giving "due regard to the opportunity of the jury to pass upon" witness credibility, there clearly and convincingly was "a miscarriage of justice under the law." A trial court's legal conclusions are subject to de novo review.
The jury's apparent confusion, resulting from an instruction the trial judge later acknowledged he should not have given, poisoned the charge as a whole and requires reversal. On this basis alone, we believe SJI is entitled to a new trial and disagree with the trial judge that no curative action was necessary. Given that the jury focused on an issue highly prejudicial to SJI during deliberations, about which it should not have heard one word, a miscarriage of justice may well have occurred.
SJI also contends its motion for a new trial should have been granted in light of several erroneous evidentiary rulings, jury instructions which were erroneous separate and apart from reasonable accommodation, and cumulative error. Again, we are constrained to agree.
Reversal on the basis of the erroneous admission of evidence is warranted only where the trial court's decision: (1) is "so wide of the mark as to result in a manifest denial of justice,"
In accordance with
SJI contends that a portion of plaintiff's wife's testimony was not probative, was highly prejudicial and unfounded, and had an inflammatory effect. During her direct testimony, SJI objected to counsel asking whether she knew that plaintiff had "threatened suicide at a meeting . . . [and] had used the word suicide?" The court instructed counsel to avoid leading questions, but permitted him to next ask plaintiff's wife if she had ever been contacted regarding plaintiff's condition at the meeting or the fact that Worrell was evaluating him to determine if he was suicidal; essentially, continuing the line of questioning assuming facts not in evidence about which no ruling issued in response to SJI's objection. Plaintiff's wife said that she was not contacted, although she wished she had been. Counsel then asked why. She responded:
When defense counsel objected that the response was "unnecessary, unwarranted. It wasn't responsive to anything. It was just a speech . . .," plaintiff's wife insisted that it was her "story" and true, to which defense counsel reiterated that it was nonetheless unresponsive. The court overruled the objection, and issued no curative instruction.
SJI subsequently moved for a mistrial, which was denied. As the court saw it, although unhappy with plaintiff's wife's speech, "outbursts happen during trials. It's an emotional time. Trials aren't perfect." The court went on to explain that mistrials should be granted only when something so "egregious happens" that a jury is inflamed, rather than simply "incense[d]" or "tweak[ed]." Therefore, since it intended to instruct the jury to act without bias, prejudice, or sympathy, it felt that would be sufficient to correct any passion aroused by the speech.
On this point, however, the instruction purporting to advise the jury that it should reach its decision in an impartial and unbiased manner was not so clear:
The error in the admission of this testimony was two-fold. It was obviously inflammatory. But it also assumed as fact multiple hearsay which was very much in controversy; namely, that plaintiff mentioned killing himself as he left the January meeting and that his statement was serious. Plaintiff's wife presented the statement as hard fact, indeed, as a betrayal by Lhulier, a long-time friend and mentor. She characterized Lhulier's failure to take action as unforgivable — yet plaintiff did not even engage in treatment for depression until approximately a year and one-half after his termination.
A lay witness may, in accordance with
Additionally, the trial court allowed plaintiff to read Oxenford and Molloy's deposition testimony to the jury in contravention of
Certainly, a trial court is afforded significant discretion when determining whether an individual meets those requirements.
To some degree the mistake was mitigated as to Molloy, whom defendant called as a witness, but that was not the case as to Oxenford. Defendant initially indicated it would also call him as a witness, but did not do so. Because it did not do so, Oxenford's deposition testimony was read to the jury without any challenge or opportunity for examination. The admission of this testimony was also error.
An expert's opinion, although it may rely upon hearsay, is not to be used as "`a vehicle for the wholesale [introduction] of otherwise inadmissible evidence.'"
In this case, Dr. York commented upon the conduct and statements of Oxenford, Molloy, and Lhulier during and after the January 14, 2005 meeting. He stated that plaintiff told Molloy of something which "most reasonable people would be concerned about," implying Molloy's response was unreasonable. He opined that either Molloy or Oxenford or both lied when describing the meeting. These hearsay statements had nothing to do with the opinion he was called upon to convey to the jury. He could not possibly have relied upon those hearsay statements or his characterizations of Oxenford, Molloy, and Lhulier in diagnosing plaintiff's condition as a "major depressive episode." It is difficult to imagine any justification for the admission of these statements.
Likewise, the court did not give the jury the model jury charge regarding expert testimony. That instruction reads:
SJI contends this omission constituted plain error.
The jury was told to consider only the credibility of the experts. They were not told that they could simultaneously find the expert both credible and mistaken, or credible but nonetheless not worthy of belief, in whole or in part, for any other reason. Since in addition to opining that plaintiff suffered from depression during the relevant time, plaintiff's expert also commented upon the credibility, good faith, and reasonableness of his employers, the omission of this instruction is indeed plain error. Once having found Dr. York credible, the jury would not have known that it did not need to accept his criticisms of SJI management, his narrative of events leading to the termination, or that it could otherwise accept only a portion of his testimony.
Charges which closely track the model jury charges rarely constitute plain error.
As a result, we agree that the trial errors, including erroneous evidentiary hearings and jury instructions, cumulatively require reversal. Trial errors that would not mandate reversal when viewed individually may require it when viewed in the aggregate.
The test for cumulative error "is informed by the dictates of
The improper admission of plaintiff's wife's statement regarding plaintiff's comments at the January meeting, the improper deposition reading, Dr. York's improper comments on the credibility and reactions of Molloy and Oxenford, and the improper omission of the expert testimony instruction, constitute a series of mistakes that "cannot be explained away as harmless . . . . They represent real and repeated errors that accumulated so as to . . . deprive defendants of a fair trial."
Accordingly, we reverse and remand for a new trial.
