                                NOT FOR PUBLICATION WITHOUT THE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-1248-18T2

SANDRA PENNISE,

          Plaintiff-Appellant,

v.

AMERICAN WATER WORKS
SERVICE COMPANY, INC.,

     Defendant-Respondent.
_____________________________

                   Argued November 4, 2019 – Decided January 16, 2020

                   Before Judges Geiger and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Camden County, Docket No. L-0315-16.

                   Laura Carlin Mattiacci argued the cause for appellant
                   (Console Mattiacci Law, LLC, attorneys; Laura Carlin
                   Mattiacci and Katherine C. Oeltjen, on the briefs).

                   Richard R. Harris, of the Pennsylvania Bar, admitted
                   pro hac vice, argued the cause for respondent (Littler
                   Mendelson, PC, attorneys; Richard R. Harris and
                   Rachel Fendell Satinsky, on the brief).

PER CURIAM
      Following a five-day trial, a jury returned a verdict in favor of defendant

American Water Works Service Company, Inc., finding it did not unlawfully

discriminate against plaintiff Sandra Pennise based on her age. Plaintiff appeals

from a subsequent order denying her renewed motion for judgment

notwithstanding the verdict (JNOV) and her alternative motion for a new trial.

      On appeal, plaintiff argues the trial court erred in denying JNOV because

the jury's verdict was against the weight of the evidence and reasonable minds

could not differ as to the result. Plaintiff also argues the trial court erred in

denying her motion for a new trial because a miscarriage of justice resulted from

the court: (1) not disclosing the scope of its relationship with a juror until after

the jury rendered its verdict; (2) mistreating plaintiff's counsel; and (3) making

erroneous evidentiary rulings. For the following reasons, we affirm.

                                         I.

      Defendant is a water and wastewater utility company. In 2001, plaintiff

began working for defendant as a "team lead" in its Utility Plant Accounting

(UPA) group. In 2008, defendant demoted plaintiff to senior accountant in the

UPA group. At the time, defendant employed accountants for its UPA and

general accounting (GA) groups. UPA accountants primarily dealt with fixed

assets while the general accountants performed broader accounting functions.


                                                                            A-1248-18T2
                                         2
      In 2010, Nancy Yilmaz became a UPA manager. Plaintiff alleged Yilmaz

demonstrated bias against older workers almost immediately after becoming a

UPA manager. Plaintiff further alleged she and other concerned employees

unsuccessfully approached Yilmaz to address her perceived age bias.

      In or about February 2014, plaintiff learned of defendant's forthcoming

reorganization (the Redesign) in which defendant sought to implement SAP, an

automated finance software system.        As part of the Redesign, defendant

combined its GA and UPA groups with the retained post-Redesign accountants

performing both functions.     Because of the efficiencies gained through

implementing SAP, UPA constituted only ten to twenty percent of the post-

Redesign accounting work.

      Following the establishment of a new organizational chart, defendant

required employees to apply for managerial positions.     Defendant selected

Michael McKeever, Nancy Yilmaz, Brian Moran, Nicole DeFeo, and Anne

McAteer as its accounting managers.

      In April or May 2014, defendant's managers met to rate non-managerial

accountants for the new post-Redesign accountant positions (the 2014 Meeting).

During the meeting, defendant's managers used a spreadsheet to rate those

employees based on criteria including technical skills, behavior, overall


                                                                      A-1248-18T2
                                      3
performance, and leadership/teamwork. Using a scale of one for lowest and five

for highest, the managers collectively scored plaintiff three for technical skills,

one for behavior, two for overall performance, and one for leadership/teamwork.

Plaintiff's combined score was the lowest of all senior accountants. After rating

the employees, defendant's managers submitted their proposal to human

resources and the legal department for review.

      On May 15, 2014, defendant notified plaintiff she was not selected for an

accountant position and would be laid-off. Plaintiff was fifty-eight years old at

the time.

      Defendant offered plaintiff temporary, month-to-month employment

following the Redesign, which plaintiff accepted. Several other employees

accepted similar temporary employment. Plaintiff remained in the temporary

position until August 2015. During that time, plaintiff trained Eileen Winton, a

post-Redesign accountant who assumed plaintiff's duties. Winton was rated the

highest performer in the GA group and is older than plaintiff.

      On her last day of work, plaintiff reviewed documents attached to her

severance package containing information made available pursuant to the Older

Worker Benefit Protection Act of 1990. The documents included a release of

claims form and the ages of the employees retained and laid off as part of the


                                                                           A-1248-18T2
                                        4
Redesign.      After reviewing the documents, plaintiff concluded defendant

terminated her based on her age.

         In January 2016, plaintiff filed a one-count complaint against defendant

alleging age and sex discrimination in violation of the New Jersey Law Against

Discrimination (LAD), N.J.S.A. 10:5-1 to -49.1 Notably, plaintiff did not allege

that defendant engaged in retaliation.

         Defendant answered, denying plaintiff's claims. Following discovery,

defendant moved for summary judgment. On March 2, 2018, the trial court

denied the motion.

         The trial commenced on August 14, 2018. During jury selection, the

following exchange took place between the trial judge and prospective juror,

R.C.:2

               THE COURT: Next, here's trouble. We got number
               717, R.C. [R.C.], have a seat. Now, I don't always take
               liberties with making fun of my jurors like I have [R.C.]
               from the moment he walked in. But we've known each
               other quite too long. And we're friends, [R.C], aren't
               we?

               R.C.: Well, you would say that.



1
    Plaintiff voluntarily dismissed her sex discrimination claim prior to trial.
2
    We refer to the juror by initials to protect his privacy.
                                                                             A-1248-18T2
                                           5
            THE COURT: I would say that. And I knew that was
            coming. But how you doing?

            R.C.: Good. How are you?

            THE COURT: Everybody's – I'm doing well, I'm doing
            well. Any issues with [questions] number 1 or 2?

            R.C.: No.

            THE COURT: You'd be able to serve with us?

            R.C.: Yes.

            THE COURT: It would be a pleasure. Because we
            know each other, and we've known each other for a long
            time and we actually worked together in different
            capacities and the like over the years, you would make
            up your own mind relative to the case based on the
            facts, correct?

            R.C.: Yes.

            THE COURT: But you would follow my instructions
            on the law even if you thought that, you know, maybe
            you knew the law better than me.

            R.C.: Unlike other times, yes.

            THE COURT: All right. Thank you. All right. [R.C.],
            thank you.

After R.C. answered other preliminary questions indicating he could be fair and

impartial, another exchange took place:

            THE COURT: Now, we've already explored the fact
            that R.C. and I know each other. And we've already –

                                                                       A-1248-18T2
                                      6
            oh, [R.C.], every once in a while when [R.C.] is trying
            to stay in shape I'll run into him at . . . the gym at the
            high school. And, of course, we agree. If we do --

            R.C.: That's because he's faster than I am and he can
            run out.

            THE COURT: If we do see each other, we'll agree
            we're not going to speak about this matter.

            R.C.: Correct.

      Plaintiff did not request to ask additional questions of R.C. at sidebar, did

not request R.C. be removed from the panel for cause, and did not exercise an

available peremptory challenge to remove R.C.          Instead, she used all her

peremptory challenges on six other prospective jurors. R.C. was seated as Juror

No. 4.

      Because of the nature of plaintiff's arguments on appeal, we briefly

summarize the testimony of the witnesses who testified at trial.

      Plaintiff called McKeever, defendant's identified corporate designee, as

her first witness. At sidebar, counsel requested that she be permitted to question

McKeever and defendant's other current and former employees through leading

questions. Defendant objected. The trial court sustained the objection, barring

plaintiff from using leading questions unless the witness became "hostile," was

"not forthcoming," or "attempt[ed] to evade." The purpose of testimony, the


                                                                           A-1248-18T2
                                        7
court reasoned, "is so that the [jury] can assess credibility" and "[l]eading

questions on direct do not give the jury an opportunity to hear how [the witness]

is responding."

      McKeever testified he participated in the 2014 Meeting but did not

personally rate plaintiff, noting he was a manager in the GA group prior to the

Redesign and thus had limited interactions with plaintiff. McKeever explained

that at the 2014 Meeting,

            there was a spreadsheet. We had some set criteria that
            we worked with H.R. on for specific individuals. . . .
            Each of the accountants were rated on those criteria and
            then we found, based off of the ratings, where we
            thought they would best be slotted in the new
            organization and we came to a conclusion as a group
            and we submitted our proposal to H.R. and legal for
            review.

      McKeever also explained that when SAP was implemented "not

everything [was] working as it should right away" so plaintiff, during her month-

to-month employment, "filled in and she helped work through some of those

defects, covering some of the manual processes that were going to be automated

in the future once they were fully integrated." McKeever further noted plaintiff

transferred her UPA knowledge to other accountants and acknowledged he did

not hear any complaints regarding plaintiff during that time.



                                                                         A-1248-18T2
                                       8
      Exhibit P-31 is a spreadsheet purportedly used during the 2014 Meeting

to rate employees. McKeever testified he viewed only a portion P-31 during the

meeting. According to McKeever, P-31 contained additional criteria, including

employees' ages, which was not on the spreadsheet he used. Following that

testimony, plaintiff unsuccessfully moved to admit P-31 in evidence.

      During cross-examination, McKeever explained the Redesign resulted

from defendant's implementation of an automated finance software known as

SAP. McKeever noted UPA accountants were primarily responsible for fixed

assets, which consisted of clerical and bookkeeping duties, while general

accountants had a broader scope of duties. After the Redesign, the GA group

absorbed the UPA group and the new accountant role consisted of approximately

seventy-five percent GA and twenty to twenty-five percent UPA. McKeever

further testified that the scorers at the 2014 Meeting considered technical skills,

performance reviews, behaviors, and general teamwork, but not age.

      Plaintiff called Yilmaz as her second witness. Prior to the Redesign,

Yilmaz was a UPA manager. Yilmaz noted she was involved in the selection

process but did not participate in the 2014 Meeting because she was on vacation.

      Yilmaz explained that SAP automated most of the UPA duties. As a

result, the post-Redesign accounting positions primarily engaged in broader GA


                                                                           A-1248-18T2
                                        9
duties.   According to Yilmaz, plaintiff "was not selected for one of those

positions because she did not demonstrate the skills and the behaviors required

for the available roles . . . in the new group."

      At plaintiff's request, Yilmaz read to the jury various positive comments

contained in plaintiff's 2011 and 2012 performance reviews, and Yilmaz further

acknowledged plaintiff received commendable reviews in 2013 and 2014.

Nevertheless, Yilmaz maintained plaintiff was not qualified for any post-

Redesign accounting roles and noted plaintiff was "doing the bare minimum" in

2014. Finally, Yilmaz denied any employee approached her with an age bias

complaint.

      Regina Slawinski worked as a senior accountant for defendant from 2008

to 2011. Slawinksi testified she, along with other co-workers including plaintiff,

noticed Yilmaz began giving preferential treatment to younger male employees

when Yilmaz assumed the UPA manager role in 2010.              Slawinksi further

testified they (Slawinksi, plaintiff, and other senior accountants) unsuccessfully

approached Yilmaz to address the alleged bias issue. At the time she testified,

Slawinksi was sixty years old.

      On direct, plaintiff testified she had GA experience prior to working for

defendant. She disagreed the UPA and GA positions consisted of different skill


                                                                          A-1248-18T2
                                        10
sets. According to plaintiff, both the UPA and GA accountants "did the same

tasks" and "had the same responsibilities."

      Further, plaintiff testified that she and other accountants unsuccessfully

approached Yilmaz to address concerns regarding Yilmaz's alleged bias against

older employees. Additionally, plaintiff testified she believed her termination

was the result of age discrimination after reviewing documents attached to her

severance package, including a release form and a list of employees laid-off and

retained, which stated their ages. Finally, plaintiff stated she performed both

the fixed asset (including transferring knowledge) and GA duties during her

month-to-month temporary employment.

      During cross-examination, plaintiff testified she considered her switch to

senior accountant more of a "position change" rather than a demotion despite

losing supervisory responsibilities. After reviewing a list of employees, along

with their age and whether they were retained or laid-off, plaintiff acknowledged

a "majority" of those retained after the Redesign were over forty years old.

      Plaintiff next called Elba Deck. At the time of the 2014 Meeting, Deck

was the director of financial planning and analysis.           Deck noted she

recommended plaintiff be terminated at the 2014 Meeting but indicated the

overall score for each employee resulted from "a group decision with group


                                                                         A-1248-18T2
                                      11
input." Deck explained plaintiff "was very efficient at . . . UPA, and that was

the niche. But going into [GA], and understanding [GA] concepts, that is the

area that [plaintiff] did not have the technical expertise that [defendant] needed"

for the new accounting role. Further, Deck stated she previously rated plaintiff

as a "low performer" based on her interactions with plaintiff.

      Plaintiff's counsel again moved for the admission of P-31 after Deck

testified the document contained more criteria than the spreadsheet used at the

2014 Meeting which, according to Deck, only included technical, behavioral,

overall performance, and teamwork/leadership. Defendant objected, contending

that P-31 was not the spreadsheet used during the 2014 Meeting and contained

demographic information, such as the employee age, that was not listed on the

spreadsheet used during the meeting.

      At sidebar, the court noted that plaintiff did not lay the proper foundation

by asking Deck whether P-31 existed, in its entirety, at the 2014 Meeting. The

trial court explained, while still at sidebar:

             you're going to have to lay a foundation, based on a
             point in time, as to, you know, how it was created, . . .
             if things were added on at a different point in time.

                   ....

                   And you fail to understand, also, just because
             they provided it to you in discovery, and even if it's

                                                                           A-1248-18T2
                                        12
            something that's in the normal course of business, that
            you don't understand is in the normal course of
            business, if this witness didn't understand that it was
            kept in the normal course of business, then you don't
            have the right person authenticating the document.

                  ....

                 Well, you're going to have to create that
            foundation before you get it in, that's my point then.

      Thereafter, plaintiff's counsel renewed her application to ask Deck leading

questions. The court again denied her application, stating:

                  [N]obody in this matter has done anything except
            be completely forthcoming. . . .         The record's
            completely barren of any not giving you answers to
            your questions. Should that happen, should you
            undertake a line of questions and someone . . . not
            provide you with an answer or they attempt to be
            evasive in some way, you could renew your application.

                   But . . . that's not the way we try a case in my
            courtroom by leading questions. The jury . . . [has] a
            right to hear the words, the evidence from the mouth of
            the witnesses to assess their credibility, not to hear a
            prepared written questions crafted by an attorney to
            which that person can basically say yes or no. That's
            no way for any jury to attempt to asses credibility in the
            case.

Later, the following exchange took place between the trial judge and R.C. in the

presence of the jury:




                                                                         A-1248-18T2
                                       13
            THE COURT: [E]veryone knows that I know juror
            number 4, [R.C.], [I] ran into a mutual friend,. . . but I
            didn't mention to him that we were on the panel.

            R.C.: And I, too saw [him] and not a word was said on
            either side.

            THE COURT: And that's what you're supposed to do.
            And the two of us know each other. So we're abiding
            by the rules, something that we aren't typically known
            to do, but there you have it.

            R.C.: All right. Just leave that amongst ourselves.

            THE COURT: Well, that's different, that's different.
            You never played basketball with this guy. Anyway,
            okay . . . we'll move forward.

      Plaintiff's counsel then proceeded with her direct examination of Deck.

Deck maintained P-31 was not the spreadsheet used during the 2014 Meeting,

noting the actual spreadsheet she used did not contain a column for gender or

age. Deck further indicated plaintiff received the following scores, ranging from

one (lowest) to five (highest): three for technical; one for behavioral; two for

overall performance; and one for teamwork/leadership.

      During a later portion of Deck's testimony, plaintiff moved to admit the

part of P-31 in evidence that contained the rating scores. That part of P-31 was

moved in evidence without objection.




                                                                         A-1248-18T2
                                       14
      During cross-examination, Deck described plaintiff's UPA position as

"manual" while the post-Redesign accountants required complex accounting

skills which plaintiff did not possess. Deck noted that her assessment of plaintiff

was based on her interactions with plaintiff and feedback from other accounting

managers. Additionally, Deck testified age was not a factor in the decision-

making process, stating: "We were too busy. We needed people to get the job

done. So it didn't matter to us your age. None of that is relevant. It was your

skill set and your ability to fit in the team."

      Anna McAteer testified that she participated in the 2014 meeting; at the

time she was an accounting manager. McAteer testified age was not a factor

during the rating process and did not recall discussing plaintiff's scores.

McAteer noted she worked with plaintiff after the Redesign and considered

plaintiff's performance "limited." McAteer also stated plaintiff did not perform

the duties of a post-Redesign accountant; plaintiff focused on UPA duties and

did not perform GA duties.

      Plaintiff next called Nakazzi Ramashala who, during the Redesign,

worked in defendant's human resources department.            Ramashala did not

participate in the 2014 Meeting. She testified that P-31 was the spreadsheet

provided to legal and not the version utilized by the managers during the rating


                                                                           A-1248-18T2
                                         15
process, noting the managers did not have access to the employees' ages. At this

point, the court admitted the entirety of P-31 in evidence.

      After plaintiff rested, defendant moved for judgment regarding plaintiff's

claims for punitive damages, emotional distress, and age discrimination. The

court dismissed plaintiff's claim for punitive damages but not her claims for

emotional distress and age discrimination.

      Defendant called Nicole DeFeo, an accounting manager, who supervised

plaintiff after the Redesign.    DeFeo described plaintiff's UPA position as

"straight forward" and not involving much subjectivity. DeFeo noted plaintiff

transferred her UPA knowledge to other accountants but did not perform GA

duties. DeFeo testified plaintiff's performance was "limited" capacity-wise and

plaintiff's behavior was "difficult." Based on her supervision of plaintiff, DeFeo

testified plaintiff was not qualified for a post-Redesign accountant role. Finally,

DeFeo testified she did not consider plaintiff's age at any point.

      Defendant next called John Houseman, an accounting manager.

Houseman participated in the 2014 Meeting. He testified that based on his

limited interactions with plaintiff, and the input offered by other managers

present at the meeting, he agreed with the low score plaintiff received.




                                                                           A-1248-18T2
                                       16
Houseman testified neither plaintiff's age, nor any employee's age, was

discussed during the meeting.

      Defendant's final witness was Eileen Winton. Prior to the Redesign,

Winton was a senior accountant in the GA group. She received a post-Redesign

accountant position. At the time, Winton was approximately sixty-one years

old. Winton indicated plaintiff provided her with UPA knowledge after the

Redesign. Winton described her time working with plaintiff as difficult. Winton

testified she did not observe plaintiff performing any GA duties post-Redesign.

      After Defendant rested, both parties moved for directed verdicts. The trial

court denied the motions.

      Following closing arguments, the court provided the following curative

instructions concerning statements made by plaintiff's counsel.

      First, in response to plaintiff's reference to her performance reviews, the

court instructed the jury to disregard the 2013 performance review that plaintiff's

counsel mentioned because it is "not in evidence. You're not going to see a 2013

performance review" and it "is not something you can base your decision on.

You're going to get the performance reviews that are in evidence, and you can

consider them."




                                                                           A-1248-18T2
                                       17
      Second, in response to plaintiff's statement that older employees felt

retaliated against after approaching Yilmaz with their age bias concerns, the

court advised the jury that this matter involves only "a claim based on illegal

discrimination, based on age," and not a retaliation claim. "[A]ny belief or any

idea or any commentary regarding retaliation is not something that's at play here,

and that you should not consider."

      Finally, in response to plaintiff's "David versus Goliath" metaphor, the

court instructed the jury that all parties, "whether it's an individual litigant or a

corporate litigant," are "entitled to the same rights and the same privileges.

Everybody is treated -- even a corporation, . . . as an individual in the eyes of

the law."

      The jury returned a seven-to-one verdict in favor of defendant. After

dismissing the jury, the trial judge noted he worked with R.C. in other capacities,

including serving on a board together, and that he (the judge) served as mayor

while R.C. served as school board president in the same municipality. The court

further stated:

             We understand confidential information, we understand
             responsibilities and context. And we've worked in
             circumstances before where we have not been able to
             share information with each other and we take that
             seriously, despite having a . . . social relationship to the
             extent that I see him, and I say hello and we talk about

                                                                             A-1248-18T2
                                        18
             each other's families and kids and things like that. And
             I'm sure that's what it'll be about if we do speak. But I
             can assure you we will not speak about this case.

      Plaintiff immediately moved for a mistrial and for JNOV. Regarding the

motion for a mistrial, plaintiff's counsel claimed she "did not know the scope of

the relationship" between the trial court and R.C. She accused the trial court of

mistreating her, which "may [have] influenced the jury." Regarding the motion

for JNOV, counsel argued the jury's verdict was "against the weight of the

evidence" and "no reasonable jury could conclude anything other than that

[plaintiff's] age played a role in the decision . . . to lay her off." The trial court

denied both motions.

      On September 11, 2018, plaintiff renewed her motion for JNOV and

alternatively moved for a new trial. Plaintiff argued she was entitled to a JNOV

because "the jury's verdict was against the weight of the evidence and reasonable

minds could not differ as to the result." According to plaintiff, she "presented

ample evidence that it was more likely than not that her age was a determinative

factor in her termination amid the [d]efendant's scheme to eliminate older

accountants from its workforce."

      Alternatively, plaintiff contended she was entitled to a new trial because

the court: (1) did not disclose the scope of its relationship with R.C. until after


                                                                              A-1248-18T2
                                         19
the jury rendered its verdict; (2) mistreated plaintiff's counsel; and (3) made

erroneous rulings regarding counsel's use of leading questions on direct, the

admissibility of P-31, and the curative instructions.

      Following oral argument, the trial court issued an oral decision and order

denying both motions. Regarding plaintiff's "weight of the evidence" argument,

the judge found plaintiff did not "establish a clear and convincing miscarriage

of justice" resulted from the jury's verdict. The judge noted neither party

produced an expert to analyze the statistical data presented at trial. The judge

further stated:

                     [D]efendant[] produced Ms. Winton, and she was
             . . . retained in the restructure of the Finance Division,
             who actually [was] older than the plaintiff. The
             defendant also presented evidence that the plaintiff had
             been hired in a role that had supervisory duties, but she
             had been relieved of those duties. The defendant
             presented other factors regarding the plaintiff,
             regarding her limited general accounting experience,
             her limited analytical experience.

                   ....

                    Now a jury making credibility determinations in
             favor of the defendant's version of the evidence could
             reasonably conclude from that that the defendant
             terminated the plaintiff, not based on her age, but based
             on lack of skill, and based on the fact that the defendant
             did, in fact, retain the more skilled Ms. Winton, despite
             her age.


                                                                          A-1248-18T2
                                        20
                    Accordingly, this [c]ourt does not find . . . any
             clear and convincing evidence of a miscarriage of
             justice. A reasonable jury could certainly have found
             that the defendant's witnesses and facts were more
             credible than plaintiff's proofs . . . .

      Regarding R.C., the judge stated that "from the outset" he "made it clear

that [they] had a longtime . . . friendship" and "worked in different capacities

together over the years." The judge noted "[p]laintiff's counsel made no requests

or inquires of the [c]ourt regarding the nature of the relationship[,] didn't ask the

[c]ourt to excuse [R.C.] for cause[, and] didn't use one of its six peremptory

challenges to strike." The judge also noted plaintiff's counsel was assisted by

two other attorneys during jury selections. The judge further indicated both he

and R.C. "encounter[ed] a mutual friend at different times during the trial, [and]

neither informed their friend that they were involved in the same litigation."

The judge further stated:

                   Plaintiff's counsel has not demonstrated, in any
             way, how [R.C.] being on the panel has, in any way,
             prevented [plaintiff] from getting justice in the case.
             There has been nothing indicated as to how [R.C.]
             being on the panel impacted the jury, other than the fact
             that he voted in favor of the defense. . . .

             And nothing came forward like from the jury that there
             were any questions or concerns about the manner in
             which deliberations were going on, that anybody felt
             that they were being unduly pressured, that any of the


                                                                             A-1248-18T2
                                        21
              jurors felt that there was any improprieties in the
              process.

                    ....

                     It would appear that, being unable to accept the
              jury's verdict, the plaintiff and her attorneys are seeking
              to make an issue where none exists, and to find fault
              with the [c]ourt for what the jury decided was plaintiff's
              lack of credible proofs on the issue. Plaintiff has shown
              no evidence that [R.C.] being on the panel caused any
              injustice to her client whatsoever, let alone by the
              required standard of clear and convincing evidence.

        Regarding the mistreatment allegation, the judge first rejected plaintiff's

attempt to raise an issue for the first time during deliberations, concerning Juror

No. 7's3 alleged inappropriate comment during a sidebar that plaintiff's counsel

was cute.4 The court noted it was unable to deal with the issue because it was

not raised by counsel prior to deliberations.

        Next, the court addressed plaintiff's "complain[t] about the abrupt manner

in which [plaintiff's counsel] was summoned to sidebar," stating:

              I typically economize my use of words. But if I see
              something . . . in the courtroom in front of a jury, I will
              be short because I want as little said as possible in front
              of the jury, when I want to stop an attorney from saying
              something, or when I want to stop a witness from saying


3
    As noted earlier, R.C. was Juror No. 4.
4
    The record does not reflect the actual statement made by Juror No. 7.
                                                                            A-1248-18T2
                                         22
             something that I don't believe the jury should hear. I
             will be short, and I will be abrupt.

             None of the commentary that [plaintiff's counsel]
             complain[s] about was said before the jury; that was all
             at sidebar or out of the presence of the jury, when the
             jury was excused, so as not to have the jury have to see
             or hear anything relative to that.

      The judge further noted he "instructed the jury that they shouldn't consider

any comments or rulings by the [c]ourt in their decision-making process." The

judge also stated he instructed the jury "that the matter shouldn't be decided

based upon the performance of the attorneys or any bias that may be developed

for or against either side."

      While the jury was deliberating, defendant moved for curative

instructions. The judge noted co-counsel "was quite obviously displeased with

something I was saying, and began making . . . obvious and notorious facial

expressions, as if to show, not only disagreement, but disgust at the [c ]ourt's

comments." This entire sequence occurred outside the presence of the jury.

      The judge then recounted the curative instructions provide after closing

arguments, as stated above.

      Next, the judge addressed the evidential rulings.           Regarding the

admissibility of P-31, the judge stated "[i]t appeared that [plaintiff's counsel]

didn't appreciate the necessity of a proper foundation for a business record to be

                                                                          A-1248-18T2
                                       23
admitted."   The judge noted P-31 was ultimately admitted once plaintiff's

counsel laid a proper foundation. Regarding use of leading questions, the judge

stated:

                    I informed counsel that I would require non-
             leading questions to begin with for all witnesses that
             were called, if they were from the defendant's case,
             being called in the plaintiff's case, or vice versa. In
             order to make the presentation effective for the
             ascertainment of the truth, I wanted the jury to hear the
             facts and the testimony as related by each witness, and
             not just by the witness saying yes or no to leading, fact-
             laden questions posed by counsel. I believe this to be
             important, in order for the jury to be able to discern
             credibility. Both parties were informed that, in the
             event a witness became hostile or unresponsive, they
             could request leading questions at such time.

      This appeal followed. Plaintiff raises the following points on appeal:

             POINT I

             THE TRIAL COURT ERRED IN DENYING
             PLAINTIFF'S MOTION FOR A NEW TRIAL
             BECAUSE A MISCARRIAGE OF JUSTICE
             RESULTED FROM THE TRIAL COURT'S FAILURE
             TO FULLY AND ADEQUATELY DISCLOSE ITS
             RELATIONSHIP WITH A JUROR.

             POINT II

             THE TRIAL COURT ERRED IN DENYING
             PLAINTIFF'S MOTION FOR A NEW TRIAL
             BECAUSE A MISCARRIAGE OF JUSTICE
             RESULTED FROM THE TRIAL COURT'S HOSTILE
             TREATMENT OF PLAINTIFF'S COUNSEL AND

                                                                          A-1248-18T2
                                        24
            MULTIPLE          ERRONEOUS               EVIDENTIARY
            RULINGS.
                                       II.

      We first address the denial of plaintiff's motion for judgment

notwithstanding the verdict (JNOV).          Plaintiff argues the trial court erred

because she was entitled to a JNOV because "the jury's verdict was against the

weight of the evidence and reasonable minds could not differ as to the result."

We disagree.

      Our review of the denial of a motion for JNOV under Rule 4:40-2 is de

novo "although we defer to the trial court's feel for the evidence." Lechler v.

303 Sunset Ave. Condo Ass'n, 452 N.J. Super. 574, 582 (App. Div. 2017).

      In reviewing the denial of a motion for JNOV, "we apply the same

standard that governs the trial court." Smith v. Millville Rescue Squad, 225 N.J.

373, 397 (2016) (citations omitted). That standard requires that "if, accepting

as true all the evidence which supports the position of the party defending

against the motion and according him the benefit of all inferences which can

reasonably and legitimately be deduced therefrom, reasonable minds could

differ, the motion must be denied." Ibid. (quoting Verdicchio v. Ricca, 179 N.J.

1, 30 (2004)). We do not consider the "worth, nature or extent (beyond a

scintilla) of the evidence, but only with its existence, viewed most favorably to


                                                                           A-1248-18T2
                                      25
the party opposing the motion." Lechler, 452 N.J. Super. at 582 (quoting Dolson

v. Anastasia, 55 N.J. 5-6 (1969)).

      Plaintiff's argument is without merit. Accepting as true all the evidence

supporting defendant's position, and according it the benefit of all reasonable

inferences, a reasonable jury could easily find defendant did not subject plaintiff

to unlawful age discrimination. Accordingly, the trial court properly denied

plaintiff's motion for JNOV.

                                        III.

      We next address plaintiff's argument that the trial court erred in denying

her motion for a new trial because a miscarriage of justice resulted from the

court: (1) not disclosing the scope of its relationship with R.C. until after the

jury rendered its verdict; (2) mistreating plaintiff's counsel; and (3) making

erroneous evidentiary rulings that cumulatively deprived her of a fair trial. In

doing so, we are mindful that the jury's determination whether defendants

engaged in age discrimination is highly fact sensitive.

      Rule 4:49-1(a) provides that a trial court shall grant a new trial if, "having

given due regard to the opportunity of the jury to pass upon the credibility of the

witnesses, it clearly and convincingly appears that there was a miscar riage of

justice under the law." A "miscarriage of justice" is defined as a "pervading


                                                                            A-1248-18T2
                                       26
sense of 'wrongness'" that stems from a "manifest lack of inherently credible

evidence to support the finding, obvious overlooking or undervaluation of

crucial evidence, [or] a clearly unjust result." Risko v. Thompson Muller Auto.

Grp., Inc., 206 N.J. 506, 521 (2011) (alteration in original) (quoting Lindenmuth

v. Holden, 296 N.J. Super. 42, 48 (App. Div. 1996)).

      "A jury verdict is entitled to considerable deference and '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.'" Ibid. (quoting Baxter v. Fairmount Food

Co., 74 N.J. 588, 597-98 (1977)). "[T]he standard for authorizing a new trial

. . . requires a determination that the jury's verdict is 'contrary to the weight of

the evidence or clearly the product of mistake, passion, prejudice or partiality.'"

Crawn v. Campo, 136 N.J. 494, 512 (1994) (quoting Lanzet v. Greenberg, 126

N.J. 168, 175 (1991)).

      We review a court's decision regarding motions for a new trial using the

same standard that governs the trial court, "whether there was a miscarriage of

justice under the law." T.L. v. Goldberg, 238 N.J. 218, 230-31 (2019) (quoting

Hayes v. Delamotte, 231 N.J. 373, 386 (2018)). We "must give due deference


                                                                            A-1248-18T2
                                        27
to the trial court's feel of the case." Risko, 206 N.J. at 522 (internal quotation

marks and citations omitted).

                                        A.

      Plaintiff argues the court's "failure to fully and adequately disclose

germane and critical details about its relationship with" R.C. until "after the jury

returned a verdict" resulted in a miscarriage of justice. We are unpersuaded by

this argument.

      During jury selections, the trial judge noted his longtime friendship with

R.C. and that they "worked together in different capacities and the like over the

years." Additionally, the judge and R.C. indicated that they occasionally run

into each other but, agreed they would not "speak about this matter." During

trial, the judge and R.C. noted they both encountered a mutual friend but did not

mention the trial. After the jury rendered its verdict, the judge indicated he

served on a board with R.C. and that he served as mayor while R.C. served as

school board president. Thus, after the verdict, the judge simply specified the

positions he and R.C. served over the years.

      Plaintiff contends the judge "should have struck [R.C.] to avoid any

tendency for the close relationship to influence the jury's verdict, or at the very

least, should have disclosed the details of the relationship during the voir dire. "


                                                                            A-1248-18T2
                                        28
Notably, plaintiff did not request the court to remove R.C. for cause. She did

not request to question R.C.'s relationship with the judge at side bar. Nor did

she use a then available peremptory challenge to remove R.C.

      More fundamentally, plaintiff has not alleged, much less shown, that the

judge and R.C. engaged in any ex parte communications during the trial. Nor

did plaintiff demonstrate that the prior relationship of the judge and R.C. had

any impact on his conduct or deliberations. We are also mindful that judge was

not the factfinder.

      Plaintiff's claims regarding any purported effect of R.C.'s relationship

with the judge amount to nothing more than shear speculation.                 Such

unsupported conjecture does not demonstrate any untoward direct or indirect

influence by either the judge or R.C. on the other jurors, much less that a

miscarriage of justice occurred.

                                        B.

      Plaintiff argues the court "demonstrated severe hostility and aggression

towards [p]laintiff's counsel, . . . from the commencement of the proceeding,

impinging on [p]laintiff's right to a fair trial by relaying a message to the jury,

through its conduct," that counsel, "and the evidence she . . . present[ed] on




                                                                           A-1248-18T2
                                       29
[p]laintiff's behalf, was not to be trusted or was otherwise lacking." The trial

record does not support this claim.

      "The conduct of a trial . . . is within the discretion of the trial court."

Persley v. N.J. Transit Bus Operations, 357 N.J. Super. 1, 9 (App. Div. 2003)

(citing Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 492

(App. Div. 2000)). "Exercise of that discretion is ordinarily not interfered with

unless there is a clear abuse of discretion which has deprived a party of a fair

trial." Ibid. (citing Daisey v. Keene Corp., 268 N.J. Super. 325, 334 (App. Div.

1993)). The Persley court further noted:

            Although great latitude is given to a trial court in the
            conduct of a trial, there are bounds within which the
            judge must stay. Mercer v. Weyerhaeuser Co., 324 N.J.
            Super. 290, 298 (App. Div. 1999). A judge must
            "conduct the trial in a fair and impartial manner,
            without making remarks that might prejudice a party or
            which are calculated to influence the minds of the jury."
            Cestero v. Ferrara, 110 N.J. Super. 264, 273 (App. Div.
            1970), aff'd, 57 N.J. 497 (1971). A judge should never
            unfairly criticize or humiliate counsel, especially in
            front of the jury. Mercer, 324 N.J. Super. at 298. A
            judge's failure to abide by these guidelines "can easily
            prejudice a jury since it conveys the opinion of the
            judge as to his belief or disbelief in one side of the
            case." State v. Zwillman, 112 N.J. Super. 6, 21 (App.
            Div. 1970). Alleged misconduct by a trial judge must
            be reviewed within the context of the entire record in
            order to determine its prejudicial impact. Mercer, 324
            N.J. Super. at 298.


                                                                         A-1248-18T2
                                      30
             [Persley, 357 N.J. Super. at 9-10.]

      Plaintiff points to the trial judge referring to her counsel as engaging in

"histrionics," calling her "a grade school child," and acting "unprofessional[ly]."

Those comments were made outside the presence of the jury during the

JNOV/new trial hearing. Moreover, in making the comments, the judge was

responding to co-counsel's alleged facial expressions who, according to the

judge, seemed displeased with a ruling. To be sure, in hindsight the judge could

have and should have expressed disapproval of counsel's behavior in a more

courteous and respectful manner, but we are unpersuaded the choice of words

proves that plaintiff was denied a fair trial by jury.

      Plaintiff also contends the judge "in a very abrupt and aggressive manner"

called for side bars "telecasting to the jury his feelings concerning the issue or

evidence which were overwhelmingly negative toward [p]laintiff's counsel."

We find this argument to be baseless. The judge reacted similarly to counsel for

both parties. Moreover, the court instructed the jury at the outset of the trial:

             So, when I make a ruling in this case, don't try to infer
             or guess from what ruling I make, or anything that I
             may say at all. Don't try and guess what my feelings
             are in this case. First of all, I'm going to tell you I don't
             have a horse in the race. I do not have feelings about
             this case. I do not root for either side to prevail, it's not
             what I do.


                                                                             A-1248-18T2
                                         31
             So, even if you knew what my feelings were, you
             should disregard them because it's your decision that
             controls. . . . I'm not rooting for either team to win.

      While the judge may have been abrupt at times, he did so either outside

the presence of the jury or to halt what he perceived to be an improper question

or comment by counsel.

                                       C.

      Plaintiff argues the trial court erred by: (1) not permitting counsel to ask

certain witnesses identified with defendant leading questions on direct; (2) not

admitting P-31 earlier; and (3) providing curative instructions after closing

arguments.

                                        1.

      N.J.R.E. 611 addresses the mode and order of examining witnesses and

presenting evidence. "Trial judges are vested with broad discretion over the

mode of interrogation to 'make the interrogation . . . effective for ascertainment

of the truth[.]" State v. Bueso, 225 N.J. 193, 206-07 (2016) (first alteration in

original) (quoting State v. T.E., 342 N.J. Super. 14, 29-30 (App. Div. 2001)).

      The right to call an adverse party to the stand was established by N.J.S.A.

2A:81-6. The right to ask leading questions of witnesses identified with an

adverse party is governed by N.J.R.E. 611(c), which provides:


                                                                          A-1248-18T2
                                       32
            Leading questions should not be used on the direct
            examination of a witness except as may be necessary to
            develop the witness' testimony. Ordinarily, leading
            questions should be permitted on cross-examination.
            When a party calls an adverse party or a witness
            identified with an adverse party, or when a witness
            demonstrates       hostility or     unresponsiveness,
            interrogation may be by leading questions, subject to
            the discretion of the court.

"The purpose of N.J.R.E. 611(c) is to 'encourage testimony from the witnesses,

rather than evidence resulting from the prompting of counsel.'" Bueso, 225 N.J.

at 206. (quoting Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence,

cmt. 8 on N.J.R.E. 611(c) (2015)). Moreover, the decision whether to allow

leading questions is within the discretion of the trial court. N.J.R.E. 611(c).

      The trial court ruled against counsel's use of leading question unless the

witness became hostile or evasive. The court rejected counsel's argument that

leading questions were appropriate merely because the witnesses were

associated with defendant. The court explained, in part:

            Adverse doesn't mean he's on the other side. . . . [It] is
            the witness being hostile, not giving you answers to
            your questions. If he's not forthcoming then you can
            lead. But you have to make an application to me first
            . . . . [T]hat's the way I read the rule and the purpose of
            testimony is so that the [jury] can assess credibility.
            Leading questions on direct do not give the jury an
            opportunity to hear how he is responding. And that's
            why I . . . don't permit it unless . . . he attempts to evade.


                                                                             A-1248-18T2
                                        33
       Plaintiff relies on an unpublished opinion in support of her argument that

she should have been permitted to ask the witnesses identified with defendant

leading questions. Unpublished opinions are not precedential or binding upon

any court. Trinity Cemetery Ass'n, Inc. v. Wall Twp., 170 N.J. 39, 48 (2001)

(citing R. 1:36-3) (Verniero, J., concurring).

       We discern no abuse of discretion by the trial court. The witnesses that

plaintiff sought to examine through leading questions answered the questions

posed by plaintiff's counsel directly and without hesitation. The witnesses did

not demonstrate actual "hostility or unresponsiveness." Their answers were not

evasive. We discern no abuse of discretion by the trial court or prejudice to

plaintiff.

                                        2.

       We next address the address the admission of P-31 in evidence. N.J.R.E.

901 provides:     "The requirement of authentication or identification as a

condition precedent to admissibility is satisfied by evidence sufficient to support

a finding that the matter is what its proponent claims." This rule of evidence

"does not require absolute certainty or conclusive proof." State v. Mays, 321

N.J. Super. 619, 628 (App. Div. 1999). "The proponent of the evidence is only

required to make a prima facie showing of authenticity." Ibid. After such a


                                                                           A-1248-18T2
                                       34
showing is made, the evidence is admissible and the jury decides the ultimate

question of authenticity. Ibid.

      "A party introducing tangible evidence has the burden of laying a proper

foundation for its admission." State v. Brunson, 132 N.J. 377, 393 (1993).

Evidence will usually be admitted "if the court finds 'in reasonable probability

that the evidence has not been changed in important respects or is in

substantially the same condition as when'" the relevant event occurred. State v.

Mosner, 407 N.J. Super. 40, 62 (App. Div. 2009) (quoting State v. Brown, 99

N.J. Super. 22, 28 (App. Div. 1968)).

      Our review of a court's evidential rulings "is limited to examining the

decision for abuse of discretion," Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008),

"i.e., [that] there has been a clear error of judgment," Griffin v. City of East

Orange, 225 N.J. 400, 413 (2016) (alternation in original) (quoting State v.

Brown, 170 N.J. 138, 147 (2001)). "Thus, we will reverse an evidentiary ruling

only if it 'was so wide off the mark that a manifest denial of justice resulted.'"

Ibid. (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).

      Plaintiff initially moved for the admission of P-31 through McKeever.

Defendant objected, arguing McKeever did not view the entire P-31 document

during the 2014 Meeting.          In sustaining defendant's objection, the court


                                                                          A-1248-18T2
                                        35
explained plaintiff would have to establish McKeever (or another witness) had

access to the entire P-31 document for its admissibility or, alternatively, the

court would permit admission of the portions of P-31 that McKeever viewed.

Ultimately, McKeever testified P-31 contained additional categories, including

the ages of employees, which the spreadsheet used during the 2014 Meeting did

not contain.

      Thereafter, plaintiff unsuccessfully moved for the admission of the entire

P-31 document through Deck. The court noted plaintiff did not lay the proper

foundation by asking Deck whether P-31 existed, in its entirety, at the 2014

Meeting. Ultimately, Deck testified P-31 was not the spreadsheet used during

the 2014 Meeting, noting the spreadsheet utilized did not contain a column for

gender or age. Thereafter, the court admitted the part of P-31 in evidence after

Deck testified she viewed that portion of the document, which contained the

scores of the candidates, during the meeting.

      The trial court did not abuse its discretion in finding plaintiff failed to

establish a proper foundation because plaintiff did not show P-31 "ha[d] not

been changed in important respects or is in substantially the same condition as

when" the relevant event, the 2014 Meeting, occurred. Mosner, 407 N.J. Super.

at 62 (quoting Brown, N.J. Super. at 28). Both Mckeever and Deck testified P-


                                                                         A-1248-18T2
                                      36
31 contained an additional criterium—the age of the candidates being scored—

not contained in the spreadsheet used during the 2014 Meeting.

      During trial, defendant represented the 2014 Meeting occurred in April,

before the additional categories were implemented. Ramashala testified she

incorporated the additional criteria after the 2014 Meeting took place. Notably,

the court admitted P-31, in its entirety, after plaintiff properly laid a foundation

through Ramashala. Accordingly, we find no abuse of discretion in denying the

admission of P-31 until plaintiff laid the proper foundation, and no clear

miscarriage of justice since the scores were admitted in evidence during Deck's

testimony and the entire document was ultimately admitted in evidence during

Ramashala's testimony.

                                         3.

      Plaintiff argues the court's curative instructions—regarding (1) counsel's

comment regarding the 2013 performance review during her closing argument;

(2) the supposed retaliation by Yilmaz; and (3) the "David versus Goliath"

metaphor—were "inappropriate and inaccurate," resulting in a miscarriage of

justice. We disagree.

      Whether a curative instruction is warranted, as well as the language used,

is within the discretion of the trial judge "who has the feel of the case and is best


                                                                             A-1248-18T2
                                        37
equipped to gauge the effect of a prejudicial comment on the jury in the overall

setting." State v. Winter, 96 N.J. 640, 647 (1984). "The adequacy of a curative

instruction necessarily focuses on the capacity of the offending evidence to lead

to a verdict that could not otherwise be justly reached." Ibid.

      In response to plaintiff's reading from the 2013 performance review, the

court instructed the jury to disregard it because it was "not in evidence." In fact,

the 2013 performance review was not admitted into evidence. To the extent

plaintiff contends the court erred in instructing the jury to disregard the

"commendable" rating included in P-31, the error, if any, is harmless. The 2013

performance review pertained to plaintiff's UPA position; the testimony did not

focus upon plaintiff's UPA skills but rather her lack of GA skills.

      Plaintiffs remaining two arguments are meritless. The second curative

instruction about retaliation properly reminded the jury that plaintiff's claim was

limited to age discrimination and did not include a claim for retaliation. Finally,

regarding the "David versus Goliath" metaphor, the court properly instructed the

jury that individuals and corporations, are "entitled to the same rights and the

same privileges."     Trial courts regularly instruct juries that in terms of

determining liability, corporations are to be treated the same as individuals. We

discern no error in either curative instruction.


                                                                            A-1248-18T2
                                        38
                                       IV.

      Because we have rejected each of plaintiff's arguments, we also reject her

claim that she is entitled to a new trial based on cumulative error.

      To the extent we have not specifically addressed any of plaintiff's

arguments it is because we find them to have insufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




                                                                        A-1248-18T2
                                       39
