                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is 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-4524-15T2

TOMIKIA DAVIS, by and
through CHARLENE DAVIS,
Limited Administrator of the
ESTATE OF TOMIKIA DAVIS,

           Plaintiff-Respondent/
           Cross-Appellant,

v.

DR. ABBAS HUSAIN,

           Defendant-Appellant/
           Cross-Respondent.


                    Argued December 5, 2018 – Decided March 1, 2019

                    Before Judges Alvarez, Reisner, and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Docket No. L-5893-07.

                    Robert J. Hagerty argued the cause for appellant/cross-
                    respondent (Hagerty & Bland-Tull Law LLC,
                    attorneys; Robert J. Hagerty, on the briefs).
            Deborah L. Mains argued the cause for
            respondent/cross-appellant (Costello & Mains, LLC,
            attorneys; Deborah L. Mains, on the brief).

PER CURIAM

      Defendant Abbas Husain appeals from the March 18, 2016 denial of his

motion for a new trial after a hearing conducted pursuant to a Supreme Court

remand. We reverse.

      The underlying facts bear brief mention. In 2005 and 2006, Tomikia

Davis1 was employed part-time in Husain's medical office. A jury agreed in

2011 that Husain created a hostile work environment, sexually harassed Davis,

and retaliated against her during her employment.         See Law Against

Discrimination (LAD), N.J.S.A. 10:5-1 to -49. She was awarded $12,500 in

damages. The trial judge granted Davis's counsel $102,962.63 in fees.

      After the trial, the judge met ex parte with the jury. Afterwards, he

informed counsel that a female juror mentioned that Husain had not placed his

hand on the Bible when taking the oath. The judge declined to make a further

inquiry regarding this, or to grant a new trial.




1
   While the matter was pending, Davis passed away. The substituted plaintiff
is "Tomikia Davis, by and through Charlene Davis, Limited Administrator of
the Estate of Tomikia Davis." We will refer to plaintiff only as Davis.
                                                                        A-4524-15T2
                                         2
      The ensuing appeals resulted in the Supreme Court's decision flatly

"prohibiting ex parte post-verdict communications between trial judge and

jurors." Davis v. Husain, 220 N.J. 270, 288 (2014). The Court directed on

remand that a different trial judge "consider afresh the import of the juror's

observation and comment, along with all other relevant factors bearing on

whether a Rule 1:16-1 factual inquiry is warranted." Ibid. The Court further

directed that "on remand [the trial judge] will engage in a practical and efficient

means of illuminating the murky facts that have been presented on appeal." Ibid.

Finally, the trial judge was to determine if the juror's "actions or comments"

affected others on the panel. Ibid. The focus of the inquiry would be whether a

"good cause showing [was] made that the jury's decision was tainted by

misconduct." Id. at 286.

      Husain appealed directly to the Supreme Court from the initial decision

post-remand that no new trial was warranted. The Court again remanded the

matter, requiring the judge to interview the four female jurors on the panel to

attempt to identify who made the statement and thereafter decide whether a Rule

1:16-1 inquiry was required.

      The Law Division judge then conducted a hearing pursuant to the Court's

directive. A single juror appeared; court staff had sent ordinary mail notices to


                                                                           A-4524-15T2
                                        3
all the female jurors. The judge found that two of the envelopes came back,

marked "return to sender." The other two notices were not returned.

      Once the juror who responded was seated in the courtroom, the Law

Division judge asked her if she spoke with the trial judge regarding Husain's

manner of taking the oath. She had not. The juror did not recall anyone

mentioning that to the judge, but she remembered someone speaking to a "court

aide" about it. She said that "maybe" she overheard the conversation, stating

that the court aide asked about the outcome of the jury's deliberations, and the

reason they reached their verdict. The juror did not recall how many jurors

spoke to the court aide.

      The judge asked the juror if anyone mentioned "whether or not [] Husain

could have or should have or didn't take any type of oath or put his hand on the

Bible? Anything like that?" She responded that during deliberations one of the

two African-American jurors, although she did not remember which one,

mentioned it. The judge asked if she had "any sense at all what the reaction of

the other jurors was at that time to that comment by the other juror concerning

[] Husain, and maybe he didn't take the oath and that type of thing?" The juror

replied:

                 [Juror]:   From what I can remember, I
            remember one particular woman was very passionate

                                                                        A-4524-15T2
                                       4
about the fact that that didn't happen, but I don't think
that the rest of the jury really put too much stock into
it. I think our decision was based on factors outside of
that. From the discussion that we had, that's what I
could tell.

       THE COURT:      When you said the one juror
was very passionate about it, are you talking about the
African[-]American juror that noted that [] Husain
didn't put his hand?

      [Juror]:     Yes.

       THE COURT:       All right.     Very good.      All
right. Counsel want to approach?

          (Sidebar commences at 11:25 a.m.)

      THE COURT:         I'd like anybody's comments,
but I'm not inclined to turn this into a discovery
deposition. Does anybody have anything that they
think I glaringly overlooked?

       [Defense counsel]:        Well,       I      won't
characterize it as glaringly overlooked, but she -- all
she's told us is that one juror was passionate about it. If
we can find out what that means, how many times did
she say it, or how did she say it?

      THE COURT:          What's your position on that?

       [Plaintiff's counsel]:  You know, I'm okay
with having those questions asked, Judge. I mean, I
guess we could just ask one more time. You know?
She's already said her sense of it, you know, the jurors
really weren't putting any weight on it. If we could just
get that --


                                                              A-4524-15T2
                            5
      THE COURT: All right.

      [Plaintiff's counsel]:       -- you know, clarify that
with her.

      THE COURT:          Very good. All right.

           (Sidebar concludes at 11:26 a.m.)

      THE COURT:         All right. When you said the
African[-]American juror was very passionate about
her belief, could you give us any added details to that?

       [Juror]:    Well, we were talking about the facts
of the case, the different things that happened, and we
-- you know, oh, and this happened and that happened,
and oh, he didn't even put his hand on the Bible when
he testified I guess is the right word. It was just -- it
was more, I guess, the way she said it, that it wasn't just
like, oh, yeah, and this. It was different.

      THE COURT:          All right. And when you said
the other jurors didn't give her much credence, that's --
but that appeared to be what you were saying? Can you
give us any more details on that?

       [Juror]:   I don't know what I'm allowed to --
like, am I allowed to say, like, what we talked about in
there? Should I say? I don't really --

      THE COURT:         That's actually a good point.
The answer is no. But -- but did the other -- did it
appear to you that any of the jurors were as concerned
with that African[-]American juror that [] Husain did
not put his hand on the Bible?

      [Juror]:     No.


                                                               A-4524-15T2
                               6
      THE COURT:          All right.      Did anybody
verbally, in giving their opinion about the case, other
than the African[-]American juror that you've
indicated, indicate that [] Husain's not putting his hand
on the Bible was a reason for questioning [] Husain's
believability?

      [Juror]:      No, I don't think so. It was a while
ago, but I don't think so.

      THE COURT:        All right. Does counsel want
to approach for a second?

        (Sidebar commences at 11:27:48 a.m.)

      THE COURT:        That's as far as I'm inclined to
go. Does anybody want to put their concerns or
objections on the record? I'm glad to let you do so
before I discharge her.

      [Plaintiff's counsel]:    I'm satisfied, Judge, so I
can put that on the record, if you'd like.

      [Defense counsel]:       Your Honor, I would
want more exploration of what she meant by very
passionate, but if Your Honor is indicating that you're
going to not question further, you know, certainly I
would object to that, without the exploration. But --

     THE COURT:          Fair enough. All right. Very
good. Thank you.

      [Plaintiff's counsel]:       Thanks, Judge.

      [Defense counsel]:           Thank you.

           (Sidebar concludes at 11:28 a.m.)


                                                             A-4524-15T2
                               7
      After the juror left the courtroom, the court and counsel discussed whether

the inquiry sufficed. The judge said that he would deny any forthcoming motion

for a new trial because in his view jurors commented in similar fashion "all th e

time" during trials. He reiterated that in his opinion,

            if the juror obviously made racist comments, anti-
            Semitic comments, anti-Catholic comments, anti-
            female comments, anti -- those cases are easier cases,
            those you do get new trials on. But where the juror
            mistakenly thought that conduct by a party occurred,
            and when I say mistake, she wasn't mistaken about what
            she observed --

                   . . . she was mistaken, it looks like -- I say it looks
            like -- what religion was [] Husain again?

The judge was told that Husain practiced the Hindu faith. The judge continued:

            She inferred a lack of credibility from [] Husain
            because [] Husain wouldn't put his hand on the Bible.
            And aside from that, the only evidence we have is that
            the other jurors weren't that impressed.

                   I'll gather from [defense counsel] he'd like me to
            call every juror back in to ask them to what extent they
            were impacted by it. I'm not going to quote the cases
            that generally say don't explore jurors' reasons. If that's
            what the Supreme Court wants, that's of course what I'll
            do. But even assuming some of them were influenced
            by it incorrectly, I don't want to sound hardhearted
            about it, but my attitude is that's life. We don't get
            perfection from jurors. That's one of the reasons why
            you don't ask them how they came to their verdict. We
            don't want to know.


                                                                             A-4524-15T2
                                          8
      At the proceeding in which Husain's motion for a new trial was formally

denied, the court reiterated that nothing "justif[ied] a new trial." He repeated

that in the opinion of the testifying juror, although the juror who observed

Husain not place his hand on the Bible was "very passionate" about that, it did

not affect other jurors or the deliberations. He ruled that to conclude otherwise

would be sheer speculation and that hence there was no basis for a new trial. He

analyzed the matter by treating the impassioned juror's concern as if it were no

different than any other factors jurors took into account in reaching a decision.

      On appeal, Husain argues:

            I.  CONTINUING THE EXERCISE OF FINDING
            AND INTERVIEWING THE JUROR IN QUESTION
            IS BOTH FUTILE AND POINTLESS AT THIS
            JUNCTURE. THE ONLY JUST RESULT AT THIS
            TIME IS TO GRANT DEFENDANT A NEW TRIAL.

      By way of cross-appeal, Davis contends:

            [I]. THE  TRIAL    COURT   ABUSED   ITS
            DISCRETION IN SETTING THE LODESTAR FOR
            ATTORNEYS' FEES AWARDED TO PLAINTIFF
            FOR TRIAL LEVEL WORK PERFORMED ON
            REMAND ISSUES IN THIS ACTION.

                  A.   Counsel Provided Ample Support for Our
                  Hourly Rates.
                  B.   The Trial Court's Ruling.
                  C.   The Prior Ruling by [the Trial Judge] is
                  Not the Law of the Case Binding on the Fee
                  Award At Issue on this Appeal.

                                                                          A-4524-15T2
                                        9
                  D.    The Trial Court Abused its Discretion by
                  Failing to Apply Rendine to the Fee Application,
                  Warranting Reversal of the Fee Award and
                  Application of the Hourly Rates Sought by
                  Counsel.

      We do not reach the cross-appeal, as our decision that Husain is indeed

entitled to a new trial makes the issue of counsel fees moot at the present time.

                                        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); R. 2:10-1. Because "[t]he judgment of the initial factfinder . . . is

entitled to very considerable respect[,]" its decision "should not be overthrown

except upon the basis of a carefully reasoned and factually supported (and

articulated) determination, after canvassing the record and weighing the

evidence, that the continued viability of the judgment would constitute a

manifest denial of justice." Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98

(1977) (internal citations omitted). Thus, a motion for a new tri al should only

be granted if any decision otherwise "would result in a miscarriage of justice

shocking to the conscience of the court." Risko v. Thompson Muller Auto. Grp.,

Inc., 206 N.J. 506, 521 (2011) (citing Kulbacki v. Sobchinsky, 38 N.J. 435, 456

(1962)).


                                                                          A-4524-15T2
                                      10
      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, 74 N.J. at 599). Generally, a

motion for a new trial is left to the sound discretion of the trial court. Ibid. That

being said, "such discretionary power cannot be exercised according to whim or

caprice so as to be arbitrary, vague or fanciful, but must be governed by

established principles of law and reason . . . in order to obtain a just result."

Ibid. (citing State v. Bunk, 4 N.J. 482, 485 (1950)).

      Moreover, "[t]he standard of review on appeal from decisions on motions

for new trial is the same as that governing the trial judge -- whether there was a

miscarriage of justice under the law." Risko, 206 N.J. at 522. 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." Lindenmuth, 296 N.J. Super. at 49

(citing Thomas v. Toys "R" Us, Inc., 282 N.J. Super. 569, 579 (App. Div.

1995)).

      Rule 1:16-1 states: "[e]xcept by leave of court granted on good cause

shown, no attorney or party shall directly, or through any investigator or other

person acting for the attorney, interview, examine, or question any . . . petit juror


                                                                             A-4524-15T2
                                        11
with respect to any matter relating to the case." An exception to the prohibition

exists, however, if good cause is shown that a jury's decision "was tainted by

misconduct." This showing includes situations in which a jury is provided with

information, not presented in the courtroom, that could be prejudicial to the

outcome. It has been said that the "good cause" referenced by the rule is not an

impropriety or defect in a juror's motives or methods or thought processes unless

it is prejudicial to the fairness of the proceedings. See State v. Kociolek, 20 N.J.

92, 100 (1955).

      In determining whether the deliberative process has been prejudicially

tainted, it cannot be infested by racial or religious bigotry.       As th e Court

discussed in State v. Loftin, 191 N.J. 172 (2007), "an impartial jury is one of the

most basic guarantees of a fair trial." Id. at 187. In the context of a capital

murder case, the Loftin Court considered the allegation that one of the jurors

had expressed not only a pre-verdict opinion regarding defendant's guilt, but did

so in a racially loaded fashion. Id. at 187-88. The defendant was African

American and the juror white.       Id. at 188. The juror was not part of the

deliberating jury—however, because no voir dire of the panel was conducted, it

was unknown whether he shared his "noxious sentiments[.]" Id. at 190. As the

Court phrased it, the test is not whether his "presence on the jury 'actually


                                                                            A-4524-15T2
                                        12
influenced the result, but whether it had the capacity of doing so.'" Ibid. (quoting

Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)). In other words, when improper

notions enter the jury room, the possibility of taint suffices for a new trial.

      Although uncertain from the record if greater efforts could have been

made to locate good addresses for all four women jurors, the one juror who

appeared did not clarify the "murky" facts. She remembered that the African-

American juror spoke to the court aide, not the judge, about Husain's failure to

place his hand on the Bible. However, and more disturbing, she revealed for the

first time that the African-American juror made her comments to the other jurors

during deliberations.

      It may be that the African-American juror was troubled enough by the

observation to have mentioned it both to the judge and the court aide, as well as

the other jurors. Or it may mean that, eroded by the passage of time, the

interviewed juror's memory is inaccurate—calling into question her statement

that no one else was affected by the other juror's observation, even if it were

reasonable for her to express the thinking of the other jurors. At this juncture,

some eight years after the trial, it is not realistic to merely direct that the

interview process continue.

      As the Court said in Loftin,


                                                                            A-4524-15T2
                                        13
            [t]o reconvene the [] jury at this time, however
            appealing it may seem, is not practicable. Even
            assuming that all the jurors are still alive and have not
            suffered an illness or condition that has affected their
            cognitive abilities, after the passage of so many years,
            we would have little faith that the juror interviews
            could produce reliable recollections . . . . The
            recollection of the most dutiful and honorable juror,
            however seemingly certain, will be fraught with the
            potential for error because of the possibility that in the
            intervening years even important words exchanged
            between jurors have been forgotten. We can demand
            only so much of human memory, with all its known
            frailties, in attempting to reconstruct long ago
            proceedings, and therefore caution must be our guide
            when the stakes are so high.

            [191 N.J. at 199-200; see State v. Phillips, 322 N.J.
            Super. 429, 442 (App. Div. 1999).]

      In Loftin, the Court simply granted defendant a new trial, in a scenario

involving the greatest stakes possible. However, as with every other matter

litigated in our courts, the outcome here is very important to those involved.

The process must have been fair.

      The juror's comment regarding the Bible raises the specter of religious

bigotry. Whether that concern colored the view of the other jurors is still

unknown, with the exception of the juror who appeared. This is a peculiar

situation. The Law Division judge said the juror who made the observation was

only concerned with Husain's credibility, i.e. that a person who refused to place


                                                                         A-4524-15T2
                                       14
his hand on the Bible was incapable of taking the oath seriously and was

therefore incredible. He contrasted this with out-and-out religious bigotry. But

if he was correct, that too is simply impermissible. The exercise of a person's

religion should not make him or her per se incredible.

      In light of the passage of time, and to ensure no manifest injustice

occurred, the only appropriate remedy is a new trial. There is no practical way

to comply with the Supreme Court's directive of ascertaining whether a Rule

1:16-1 investigation is warranted. Only a new trial would ensure that the

outcome was untainted. The possibility that the verdict was a miscarriage of

justice is too great for us to decide otherwise.

      Reversed.




                                                                        A-4524-15T2
                                       15
