                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it i s posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1116-17T2

WASHINGTON MUNOZ,

          Plaintiff-Respondent/
          Cross-Appellant,

v.

NEW JERSEY SPORTS & EXPOSITION
AUTHORITY, NEW MEADOWLANDS
RACETRACK, LLC, KF MECHANICAL,
LLC, COUNTRY SIDE PLUMBING
& HTG, COUNTRYSIDE PLUMBING
AND HTG, COUNTRY SIDE
PLUMBING, COUNTRY SIDE
PLUMBING & HEATING, INC.,

          Defendants,

and

LP CIMINELLI, INC., LP CIMINELLI
RCCIP, COOPER PLASTERING
CORPORATION, PAINO ROOFING
COMPANY, INC., and PAINO
ROOFING CO., INC.,

     Defendants-Appellants/
     Cross-Respondents.
__________________________________
            Argued March 27, 2019 – Decided April 23, 2019

            Before Judges Alvarez, Nugent and Mawla.

            On appeal from Superior Court of New Jersey, Law
            Division, Middlesex County, Docket No. L-3284-15.

            Timothy E. Burke argued the cause for
            appellants/cross-respondents (Mc Elroy Deutsch
            Mulvaney & Carpenter, LLP, attorneys; Richard E.
            Brennan and Samuel A. James, on the briefs).

            Gerald H. Clark argued the cause for respondent/cross-
            appellant (Clark Law Firm, PC, attorneys; Gerald H.
            Clark, Lazaro Berenguer, and Mark W. Morris, of
            counsel and on the briefs).

PER CURIAM

      Defendants LP Ciminelli (Ciminelli) and Paino Roofing Co., Inc. (Paino),

appeal from a November 9, 2017 judgment memorializing a jury verdict in favor

of plaintiff Washington Munoz in this personal injury matter. Plaintiff cross -

appeals from the trial court's dismissal of his future lost wages and punitive

damages claim. We affirm.

      We take the following facts from the record. Plaintiff, a union employee

of Cooper Plastering Corp. (Cooper), was installing plaster on the roof of the

Meadowlands Racetrack. Cooper was a masonry subcontractor hired by the

construction manager, Ciminelli. The roof surface was flat and covered by a

thin, flexible, rubber membrane, which had been installed by Paino, the roofing

                                                                       A-1116-17T2
                                      2
subcontractor. The membrane covered at least two six-inch recessed roof drain

holes, causing a slight indentation at the site of each drain and obscuring them

from view. The construction plans required the membrane to be cut and fitted

around the drains on the roof, but this was not done at the time of the incident.

      Plaintiff walked across the roof carrying two sixty-pound buckets of

plaster, and a work bag filled with tools slung over his shoulder. Plaintiff, who

had not previously been on the roof, looked down, not ahead, as he walked. He

testified the roof "looked straight," but he did not otherwise inspect the roof area

before he walked across it. As plaintiff stepped onto one of the covered drain

holes, the membrane gave way and caused him to lose his balance and twist in

position, thereby causing his tool bag to slip down his arm, pulling his shoulder.

Plaintiff felt his body contort and immediately felt pain in his arm and back. A

co-worker, who was on the roof with plaintiff, testified there were no signs

indicating the presence of the hole and that plaintiff injured his back.

      Ciminelli's worksite policy required workers to report injuries the same

day of their occurrence.     Plaintiff did not immediately report the incident

because no one from Ciminelli was present to take his report. Plaintiff attempted

to continue working, but could not because of the pain.




                                                                            A-1116-17T2
                                         3
      The following day, plaintiff notified Ciminelli's project safety supervisor

about the incident. When the safety supervisor observed the membrane-covered

drain hole, he responded "fucking roofer."        The safety supervisor directed

plaintiff to leave the site and stated he could no longer work there because he

failed to timely report the injury.

      Plaintiff's treating orthopedic surgeon testified plaintiff had sustained a

serious injury to his back and shoulder as a result of this incident. Specifically,

plaintiff had a torn rotator cuff, a ruptured disc, a displaced biceps tendon,

subacromial-impingement, bursitis, and disc bulges and disc protrusion.

Although plaintiff underwent two surgical procedures, his doctor testified the

rotator cuff tear had worsened and required another surgery. Plaintiff's doctor

classified his injuries as "permanent" and noted he remained in treatment for

ongoing pain. He also testified plaintiff would have a "Popeye sign" or "very

obvious" deformity on his arm.

      The defense provided the video testimony of its medical expert who

testified plaintiff "had torn [the] right biceps tendon" as a result of the accident.

However, he claimed the rotator cuff tear occurred after the surgery and was

unrelated to the accident.




                                                                             A-1116-17T2
                                         4
      In addition to testimony concerning his physical injuries, plaintiff

presented the video testimony of a psychologist who testified he had suffered

mentally because of his inability to work, provide for his family, and enjoy

athletics and recreation. 1   The psychologist diagnosed plaintiff with major

depressive disorder caused by the injury. She recommended psychotherapy and

possible treatment with antidepressants, and testified that without such treatment

"the quality . . . of his day-to-day and his psychological well-being will be

affected and probably spiral in a negative way[.]"

      Plaintiff presented evidence he incurred $104,671.14 in past medical bills.

His doctor estimated plaintiff would incur $25,000 in future orthopedic

treatment costs.     His psychologist estimated that, given plaintiff's life

expectancy, he would incur $170,000 in psychotherapy expenses and, if

required, $221,000 in psychopharmacological treatment, depending on the

medication cost, frequency of use, dosage, and brand.

      Plaintiff testified he was unable to work in construction after the accident,

had limited earnings of approximately $4000 for unspecified construction work,



1
    Plaintiff's family members corroborated the psychologist's testimony.
Plaintiff's former wife and daughter testified and explained he was very active,
hardworking, and happy, but was not the same since the accident and could no
longer play sports, as he had before the accident.
                                                                           A-1116-17T2
                                        5
and also worked as an emcee at parties. Plaintiff had a prior career as a truck

driver. He testified that because of a previous car accident, he was "traumatized

behind the wheel [and could not drive] a truck because [he] get[s] nervous."

Plaintiff did not offer testimony as to other future employment plans. However,

his doctor testified his injury would prevent him from performing "any heavy

work[.]"

      Plaintiff earned thirty-nine dollars per hour working for Cooper on a full-

time basis, with occasional overtime. He presented a pay stub, which showed

gross earnings of $1606.80 and $1150.68 in net pay per week.

      Plaintiff presented testimony from a workplace safety expert who

concluded Ciminelli and Paino had a non-delegable duty to maintain the work

site in safe condition, which included the duty to perform safety insp ections,

correct hazards, and otherwise assure job site conditions were in compliance

with Occupational Safety and Health Administration (OSHA) standards. The

expert cited Ciminelli's safety manual, which stated "[c]ontractors are ultimately

responsible for the safety of their own employees and any of their subcontractors

on the jobsite" and the contract between Ciminelli and Paino, which held Paino

responsible for the safety of its employees.




                                                                          A-1116-17T2
                                        6
      Plaintiff's expert referred to OSHA safety standards and testified holes

should be covered with material capable of holding twice the expected weight

and marked to indicate it is covering a hole. The expert noted the rubber

membrane which covered the drain holes could not bear plaintiff's weight, which

is what caused him to lose his balance and sustain injuries. Plaintiff's expert

characterized the drain as a "boob[y] trap" because the hole was not visible. He

concluded Ciminelli had not complied with the required OSHA standards

because the hole was improperly covered.

      Plaintiff's expert concluded both Ciminelli and Paino were responsible for

the conditions which led to plaintiff's injury based on the duties imposed on

them by Ciminelli's safety manual. Importantly, the expert concluded plaintiff

had not violated any safety instructions by walking across the roof while looking

down because even if plaintiff had looked ahead, or inspected the roof prior to

carrying the plaster buckets, he would not have seen the membrane-covered

drain hole, or understood it was a hazard.

      The jury found that Ciminelli and Paino were negligent and their

negligence was a proximate cause of the incident. They also found that plaintiff

was negligent but his negligence was not a proximate cause of the incident. The

jury apportioned seventy percent liability to Ciminelli and thirty percent to


                                                                         A-1116-17T2
                                       7
Paino. The jury awarded plaintiff $2.4 million for pain, suffering, impairment,

disability, and loss of enjoyment of life; $104,671 in past medical bills;

$150,000 for future medical expenses; and $235,248 for his past lost earnings.

Plaintiff's past medical bills were conformed to $35,318.19, pursuant to N.J.S.A.

2A:15-97, for a total verdict of $2,820,566.19.

      The trial judge dismissed plaintiff's punitive damages claim, denied

defendants' motion for a new trial or remittitur, and entered judgment in favor

of plaintiff. This appeal and cross-appeal followed.

                                          I.

      A trial judge must grant a motion for a new trial if "it clearly and

convincingly appears that there was a miscarriage of justice under the law." R.

4:49-1(a). We apply the same standard on appeal. R. 2:10-1. A miscarriage of

justice exists when a "pervading sense of 'wrongness'" justifies the "undoing of

a jury verdict[.]" Lindenmuth v. Holden, 296 N.J. Super. 42, 48 (App. Div.

1996) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 599 (1977)).

      Generally, a motion for a new trial is within the sound discretion of the

trial court. Ibid. In reviewing the trial court's ruling, the appellate tribunal must

still "defer to the trial court in those areas where the trial court has expertise, or

a 'feel of the case,' e.g., the credibility or demeanor of the witnesses." Id. at 49


                                                                              A-1116-17T2
                                          8
(quoting Thomas v. Toys "R" Us, Inc., 282 N.J. Super. 569, 579 (App. Div.

1995)).

      "When a court is persuaded that a new trial must be granted based solely

on the excessiveness of the jury's damages award, it has the power to enter a

remittitur reducing the award to the highest amount that could be sustained by

the evidence." Cuevas v. Wentworth Grp., 226 N.J. 480, 499 (2016). Courts

"must exercise the power of remittitur with great restraint." Ibid. "A jury's

verdict, including an award of damages, is cloaked with a 'presumption of

correctness[,]'" which "is not overcome unless a defendant can establish, 'clearly

and convincingly,' that the award is 'a miscarriage of justice.'"      Id. at 501

(quoting Baxter, 74 N.J. at 596, 598). "[E]ven a seemingly high award should

not be disturbed; only if the award is one no rational jury could have returned,

one so grossly excessive, so wide of the mark and pervaded by a sense of

wrongness that it shocks the judicial conscience, should a court grant a

remittitur." Id. at 500.

      "[W]hen considering a remittitur motion, a court must view 'the evidence

in the light most favorable to the plaintiff.'" Id. at 501 (quoting Johnson v.

Scaccetti, 192 N.J. 256, 281 (2007)). "[T]he court must give 'due regard to the

opportunity of the jury to pass upon the credibility of the witnesses.'" Ibid.


                                                                          A-1116-17T2
                                        9
(quoting He v. Miller, 207 N.J. 230, 248 (2011)). "The standard for reviewing

a damages award that is claimed to be excessive is the same for trial and

appellate courts, with one exception—an appellate court must pay some

deference to a trial judge's 'feel of the case.'" Ibid. (quoting Johnson, 192 N.J.

at 282).

        Defendants argue the trial judge erred in denying their motion for a new

trial because: 1) the jury could not find plaintiff negligent and also find his

negligence was not the proximate cause of his injuries; 2) the amount of damages

was excessive and unsupported by the evidence;2 3) the judge erred in admitting

evidence regarding the defense medical expert's earnings and business; 4) the

jury's award of future medical expenses and past lost wages was unsupported by

the record; 5) the summation by plaintiff's counsel was improper and prejudicial;

and 6) the aforementioned errors cumulatively led to a prejudicial outcome.

        On his cross-appeal, plaintiff claims his past lost earnings could prove his

future lost wages, there was evidence to support the award of punitive damages,

and the trial judge erred when she dismissed these claims. We address the

arguments raised in turn.




2
    In the alternative, defendants argue for remittitur on this issue.
                                                                            A-1116-17T2
                                         10
                                       A.

      Defendants claim the jury could not find defendants and plaintiff were

both negligent, and also conclude plaintiff's negligence was not the proximate

cause of his injuries. Defendants assert the judge erred when she denied them a

new trial because plaintiff's and defendants' negligence could not be

"unbundled." We disagree.

      Negligence and proximate cause are separate and distinct elements, and

are typically separate questions. Lancos v. Silverman, 400 N.J. Super. 258, 272

(App. Div. 2008). Determining proximate cause requires a "combination of

'logic, common sense, justice, policy and precedent' that fixes a point in a chain

of events, some foreseeable and some unforeseeable, beyond which the law will

bar recovery." People Express Airlines, Inc. v. Consol. Rail Corp., 100 N.J.

246, 264 (1985) (quoting Caputzal v. Lindsay Co., 48 N.J. 69, 77-78 (1966)).

      Mere negligence does not necessarily equate with proximate cause.

Rather, the negligent act must be a "substantial factor" in bringing about the

injury. Perez v. Wyeth Labs. Inc., 161 N.J. 1, 26 (1999); James v. Arms Tech.,

Inc., 359 N.J. Super. 291, 311 (App. Div. 2003). "A jury may consider a

plaintiff's negligence only when the evidence adduced at trial suggests that the

plaintiff was somehow negligent and that negligence contributed to the


                                                                          A-1116-17T2
                                       11
plaintiff's damages." Fernandes v. DAR Dev. Corp., 222 N.J. 390, 408 (2015)

(citing Roman ex. rel. Roman v. Mitchell, 82 N.J. 336, 343 (1980)).

      The trial judge found the purported basis for a new trial was "grounded in

a disagreement as to how the jury interpreted the evidence and to how the jury

may have viewed the credibility of certain witnesses[.]" The judge did not

address defendants' arguments as to the jury's finding regarding plaintiff's own

negligence.

      In this regard, we note plaintiff, who was encumbered by heavy buckets

and a tool bag, stepped into a hole covered by an opaque rubber liner. His

testimony established that the roof ahead of him looked "flat" and "straight."

Under these circumstances, the jury could reasonably find plaintiff's failure to

pay attention and look down while he was walking was not a substantial factor

in causing the accident because the obscured hole was not readily visible, and

plaintiff would not have seen it even if he had paid attention. Even if plaintiff

had noticed the slight indentation in the roof surface, there is no evidence he

would have reason to believe this indentation would give way. Thus, the facts

demonstrated a reasonably prudent person acting without negligence would have

stepped into the hole. The facts do not prove—directly or circumstantially—




                                                                         A-1116-17T2
                                      12
plaintiff's negligence was the proximate cause of his own injuries. The trial

judge's decision to deny defendants a new trial was sound.

                                        B.

      Defendants challenge the trial judge's decision denying a new trial, or

alternatively remittitur, regarding the damages awarded by the jury. They argue

the sum of the award "was excessive in light of plaintiff's complaints" and allege

plaintiff suffered no life-altering injuries, broken bones, loss of bodily function,

or any extended hospitalization, and has continued to perform the activities of

daily living. Defendants emphasize the testimony did not demonstrate plaintiff

was unable to work.

      Remittitur is appropriate where a jury award is excessively "glaring" and

"obvious." Cuevas, 226 N.J. at 509. The Cuevas Court further noted, the

calculation of emotional distress damages is not a scientific process and is by

definition "inexact." Id. at 500. Because no two juries will award the same

damages, "a permissible award may fall within a wide spectrum of acceptable

outcomes." Ibid. In this regard, the Court stated: "[i]n the end, a thorough

analysis of the case itself; of the witnesses' testimony; of the nature, extent, and

duration of the plaintiff's injuries; and of the impact of those injuries on the




                                                                            A-1116-17T2
                                        13
plaintiff's life will yield the best record on which to decide a remittitur motion."

Id. at 510.

      Here, following Cuevas, the trial judge stated:

                     [W]hat I cannot do is to substitute what this
              [c]ourt's judgment would be in terms of an appropriate
              jury's verdict but, rather, must look at that evidence and
              determine whether or not reasonable minds could, in
              fact, rule as it did and so, with that as the standard, I am
              not persuaded that the jury's verdict is so excessive, so
              shocking to the conscience that it should be set aside.
              So, for those reasons, the motion for a new trial [and]
              the motion for remittitur must be denied.

      We agree. The jury's award may have been substantial, but it does not

shock the conscience or represent a miscarriage of justice under the facts

presented. The evidence in the record showed plaintiff experienced significant

detrimental changes in many facets of his life. He could not engage in leisure,

social, or work activities as he had done before the accident.               The expert

testimony corroborated these facts, demonstrating plaintiff suffered from

psychological ailments, permanent physical injury, and disfigurement as a result

of the accident, and required significant future treatment. For these reasons, the

trial judge's decision declining to disturb the jury award was not an error.




                                                                                A-1116-17T2
                                         14
                                       C.

      Defendants challenge the trial judge's admission of evidence regarding

their medical expert's earnings, the sale of his business for a substantial sum of

money, and his work for defense firms. We find no reversible error.

      We review the trial court's decisions to admit or exclude evidence under

an abuse of discretion standard. Estate of Hanges v. Metro. Prop. & Cas. Ins.

Co., 202 N.J. 369, 383-84 (2010) (citing Green v. N.J. Mfrs. Ins. Co., 160 N.J.

480, 492 (1999)). We "grant[] substantial deference to the evidentiary rulings

of a trial judge." Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 319 (2006)

(citing DeVito v. Sheeran, 165 N.J. 167, 198 (2000)). Accordingly, absent a

showing the trial court abused its discretion, we will not reverse a decision

concerning the admission or exclusion of evidence unless we conclude it was so

wide of the mark as to bring about a manifest injustice. E & H Steel Corp. v.

PSEG Fossil, LLC, 455 N.J. Super. 12, 24-25 (App. Div. 2018) (citing Griffin

v. City of E. Orange, 225 N.J. 400, 413 (2016)).

      Here, pursuant to the testimony of defendants' medical expert, the jury

learned he previously owned a company, which performed medical evaluations

for litigation purposes, and sold the business for a substantial sum to another

company, for whom he continued to perform evaluations. The expert also


                                                                          A-1116-17T2
                                       15
testified he performed ninety-eight percent of his evaluations on behalf of

defense firms and marketed to them.

      At the outset of the trial, the judge determined the source of the expert's

earnings from defense work was relevant because it "speaks to the bias that he

may or may not have," and the weight it would give his testimony. Following

the trial, the judge reviewed the expert's testimony and concluded it was not

grounds for a new trial because the information would not "have prejudiced the

jury to the point where a manifest injustice has resulted." We agree.

      Part of the jury's task in evaluating an expert's credibility requires it to

consider "the interest of any witness in the outcome of the lawsuit." Jurman

v.Samuel Braen, Inc., 47 N.J. 586, 593 (1966). An expert's fee, and his or her

work history as an expert witness, are admissible evidence. See Espinal v. Arias,

391 N.J. Super. 49, 60-61 (App. Div. 2007) (admitting testimony as to the

amount of the expert's fee, and his frequent appearances as an expert before the

court).

      In Gensollen v. Pareja, 416 N.J. Super. 585, 591 (App. Div. 2010), we

discouraged "excessive" and "burdensome" discovery on an expert's finances,

but did not limit the scope of an expert's testimony on these points.        Ibid.

(quoting Elkins v. Syken, 672 So. 2d 517, 522 (Fla. 1996)). We held a "party


                                                                          A-1116-17T2
                                      16
may obtain an approximation of the portion of professional time the expert

devotes to providing services in litigation." Ibid. Indeed, "[w]hether an expert

is a 'hired gun' or one whose opinions have greater foundations of objectivity is

an issue to be litigated by counsel and considered by the jury." Cogdell v.

Brown, 220 N.J. Super. 330, 336 (Law Div. 1987).

      Here, the expert had a significant work history on behalf of defense firms

and derived nearly all of his income from such clientele. Moreover, the expert

had turned his forensic consulting business into a defense-oriented product by

marketing and ultimately selling his company to a defense expert evaluation

provider. This information was probative on the issues of credibility and bias,

as it allowed the jury to consider the nature, scope, and scale of his work, and

whether the expert was pre-ordained to an outcome. For these reasons, the

judge's determination to admit this evidence was not an abuse of discretion.

                                       D.

      We next address defendants' challenges to the award of future medical

expenses and past lost wages to plaintiff. Defendants argue both awards are

unsupported by the evidence and were grounds for a new trial.

      The jury may award future medical expenses where there is a reasonable

probability such expenses "flow[ed] from the past harm[.]" Coll v. Sherry, 29


                                                                         A-1116-17T2
                                      17
N.J. 166, 175 (1959); Dombroski v. City of Atlantic City, 308 N.J. Super. 459,

469 (App. Div. 1998); Higgins v. Owens-Corning Fiberglas Corp., 282 N.J.

Super. 600, 611-12 (App. Div. 1995). Future medical expenses are permissible

where they "can be calculated objectively and without difficulty" and

"discounting the future loss to present value is not only just, but feasible. "

Mauro v. Owens-Corning Fiberglas Corp., 225 N.J. Super. 196, 211 (App. Div.

1988).

      Here, as noted, there was ample medical testimony from plaintiff's

medical experts to demonstrate the accident harmed plaintiff and that he would

require treatment into the future. Moreover, the experts quantified the costs of

the future treatments.

      The jury awarded plaintiff $150,000 in future medical expenses.

Considering the credible expert testimony in the record regarding future medical

expenses, and that the jury awarded only a portion of the sum sought by plaintiff,

we conclude the award was supported by credible evidence and was neither

speculative nor grounds for a new trial.

      We reach a similar conclusion regarding the jury's decision to award

plaintiff past wages. A plaintiff need not prove damages with "exactitude," but

rather "with such certainty as the nature of the case may permit, laying a


                                                                          A-1116-17T2
                                       18
foundation which will enable the trier of the facts to make a fair and reasonable

estimate." Caldwell v. Haynes, 136 N.J. 422, 436 (1994) (quoting Lane v. Oil

Delivery, Inc., 216 N.J. Super. 413, 420 (App. Div. 1987)).

      Notably, our law does not require documentary evidence of lost wages

and, instead, testimony is sufficient for the jury to consider such claims. See

Ruff v. Weintraub, 105 N.J. 233, 236 (1987) (plaintiff's testimony was sufficient

to prove her net income); Langley v. Allstate Ins. Co., 206 N.J. Super. 365, 368-

71 (App. Div. 1985) (a wage claim was permitted in a wrongful death matter

despite a lack of paper records).

      Here, plaintiff testified he earned thirty-nine dollars per hour.        He

submitted a pay stub, which showed $1606.80 in gross weekly wages, and

$1150.68 in net weekly wages.       The trial judge charged the jury, without

objection, in accord with Model Jury Charges (Civil), 8.11C, "Loss of Earnings"

(rev. July 2010) as follows:

                  The plaintiff also has a right to be compensated
            for any earnings lost as a result of injuries caused by
            the defendant's negligence. Any award for lost earnings
            must be based upon net take home pay not on gross
            income.

                   This is because only take-home pay, the amount
            that's left taking out taxes would have been received by
            the plaintiff and the amount you award is not subject to
            federal or New Jersey income taxes.

                                                                         A-1116-17T2
                                      19
                    So you must first decide whether [plaintiff]
             proved that he was disabled by his injuries which in
             turn resulted in lost income. If so you must then decide
             and fix the amount of lost earning.

                    Do this by considering the length of time . . . the
             plaintiff was not able to work, what his income was
             before the injuries, how much he earned upon return to
             work, whether the injuries affect his ability to do tasks
             required on the job and any lessening or decrease in the
             income if he returned to work. In your analysis, think
             about special skills the plaintiff has and whether there
             were any other jobs available that he was able to do to
             earn income. The plaintiff must have tried to minimize
             the earnings lost, but extraordinary or impractical
             efforts are not necessary.

      The jury awarded plaintiff $235,248 in past lost wages. Based upon the

objective evidence presented of plaintiff's net income, this sum approximated

plaintiff's net earnings from the date of his injury to the trial. The past lost wage

award was supported by credible evidence in the record and does not constitute

reversible error.

                                         E.

      Defendants argue the summation by plaintiff's counsel prejudiced the jury.

They assert the summation created a plain error and requires a new trial.

      Rule 2:10-2 states:

                   Any error or omission shall be disregarded by the
             appellate court unless it is of such a nature as to have
             been clearly capable of producing an unjust result, but

                                                                             A-1116-17T2
                                        20
            the appellate court may, in the interests of justice,
            notice plain error not brought to the attention of the trial
            or appellate court.

As a general proposition, the failure to object to a point raised in summation

indicates that counsel did not believe the remarks were prejudicial.           The

omission also deprives the trial court of the opportunity to take curative action.

Jackowitz v. Lang, 408 N.J. Super. 495, 505 (App. Div. 2009).

      Attorneys are allowed "broad latitude in closing arguments." Tartaglia v.

UBS PaineWebber Inc., 197 N.J. 81, 128 (2008) (citing Bender v. Adelson, 187

N.J. 411, 431 (2006)). But, "[s]ummations must be 'fair and courteous, grounded

in the evidence, and free from any "potential to cause injustice."'" Risko v.

Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 522 (2011) (quoting Jackowitz,

408 N.J. Super. at 505 (quoting Geler v. Akawie, 358 N.J. Super. 437, 463 (App.

Div. 2003))). Summations are improper "[w]here they cross the line beyond fair

advocacy and comment, and have the ability or 'capacity' to improperly

influence the jury's 'ultimate decision making[.]'" Ibid. (quoting Bender, 187

N.J. at 416). Furthermore, "it is improper for an attorney to make derisive

statements about parties, their counsel, or their witnesses." Szczecina v. PV

Holding Corp., 414 N.J. Super. 173, 178 (App. Div. 2010). In Jackowitz, 408




                                                                           A-1116-17T2
                                        21
N.J. Super. at 499, we held an attorney may not urge the jury to "send a message"

when determining the amount of compensatory damages.

      Here, defendants point to four segments of plaintiff's summation as

objectionable. They are as follows:

      First,

                      And that's why it's important for these basic
               safety rules to be followed. So we go into it, into the
               injuries and the damage because the next thing you're
               going to be asked after you get down to the parties in
               the case is about making up for the harms and losses
               and an analogy like, you know, when we were kids,
               maybe if you played stickball or something, you know,
               and you shot to the next yard or something and you
               broke a window, you know, your parents might have
               marched you right over there and made you, you know,
               admit you did something wrong, apologize for it, and
               then say, I'm going to make up for it. I'm going to pay
               for the window.

                     And that's the part of the case of my closing we're
               now in. We don't have any of that here. Obviously, we
               have no admission. We don't have any remorse and you
               saw that when you heard from [Ciminelli's safety
               manager] and some of the others, and they don't want
               to pay for it, so that's why you guys are here because
               we're asking you to make up for the harms and losses
               that happened here.

      Second,

                      And as we talked about, defendants accept no
               responsibility, which is why you're here, and we have
               [p]laintiff's [e]xhibit [twenty], which is in evidence in

                                                                           A-1116-17T2
                                         22
            the case and not only do they not accept the
            responsibility here, but it’s actually in their . . . booklet,
            if we can go to that page.

      Third,

                  So what's this case really about? Let's go to the
            next slide where you talk about damages and injuries
            and we start . . . right back at . . . Ciminelli's safety
            manual again. It's your finger, your eye, and your life
            that we are concerned about. They are irreplaceable.
            Your means of livelihood is diminished, at worst
            destroyed when you are disabled. You and your family
            are the people to suffer the most. Safety rules help
            protect you.

      Fourth,

                   [Co-counsel] asked me to put this in here. It says,
            the book of [P]roverbs says, speak up for those who
            cannot speak for themselves for the rights of all who
            are destitute. Speak up and judge fairly, defend the
            rights of the needy, and I think that's appropriate when
            we talk about balancing the scales of justice in this case.

      At the outset we note, defendants did not object during summation.

Notwithstanding, we do not find the summation constitutes plain error. Indeed,

counsel's comments regarding defendants' lack of remorse derived from a

statement by the Ciminelli's safety manager.         Moreover, the statement and

counsel's comment that it demonstrated a failure to accept responsibility were

within the context of counsel's discussion of the Ciminelli safety manual. The

manual stated: "Each member of the [Ciminelli] corporate management team is

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accountable for the safety, well-being, and safe work conduct of individuals at

our sites." (Emphasis added). The manual further stated "Contractors are

ultimately responsible for the safety of their own employees and any of their

subcontractors on the jobsite. This does not relieve the prime/subcontractor

from their responsibility to their own employees[.]" Therefore, it was not

reversible error for plaintiff's counsel to cite the comment of Ciminelli's safety

manager or note defendants had avoided the accountability and responsibility

their own safety manual imposed upon them.

      Defendants also misconstrue the portion of plaintiff's summation, which

we have delineated in segment four. Here as well plaintiff's comments derived

from Ciminelli's safety manual whose summary read as follows: "It is your

finger, your eye, and your life that we are concerned about.            They are

irreplaceable. Your means of livelihood is diminished, or at worst destroyed,

when you are disabled. You and your family are the people to suffer the most.

Safety rules help protect you."

      Thus, read in context, counsel's comments were not clearly capable of

producing an unjust result. The summation did not constitute reversible error.




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                                        F.

      Finally, because there was no individual error requiring reversal, there

was no cumulative error. On the cross-appeal, we affirm substantially for the

reasons expressed by the trial court.

      Affirmed.




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