                                 NOT FOR PUBLICATION WITHOUT THE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-0004-17T2

T.S.,1

          Plaintiff-Appellant,

v.

TOWNSHIP OF IRVINGTON
and ANTHONY VAUSS,

          Defendants-Respondents.


                   Argued November 26, 2018 – Decided March 14, 2019

                   Before Judges Fasciale and Rose.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Essex County, Docket No. L-7401-14.

                   Paul R. Castronovo argued the cause for appellant
                   (Castronovo & McKinney, LLC, attorneys; Paul R.
                   Castronovo, of counsel and on the briefs; Megan Frese
                   Porio, on the briefs).

                   Christopher W. Kinum argued the cause for respondent
                   Anthony Vauss (Critchley, Kinum & DeNoia, LLC,


1
    We use initials to protect plaintiff's privacy.
            attorneys; Christopher W. Kinum and Christopher L.
            Fox, of counsel and on the joint brief).

            Genova Burns LLC, attorneys for respondent Township
            of Irvington (Angelo J. Genova and Nicholas J. Repici,
            of counsel and on the joint brief; Allison M. Benz, on
            the joint brief).

PER CURIAM

      In this employment discrimination action, plaintiff T.S. appeals from a

judgment of no cause of action following a jury verdict in favor of defendants

Township of Irvington and Anthony Vauss. Plaintiff also appeals from the

denial of her motion to dismiss defendant's 2 defamation counterclaim at the

conclusion of his case. We affirm.

                                       I.

      Plaintiff contended that defendant sexually harassed her numerous times

over the course of several months, when she was working as a public works

inspector for the Township and defendant was her supervisor. Plaintiff claimed

the sexual harassment continued when defendant became mayor-elect of the

Township in May 2014, and he ultimately sexually assaulted her one month

later. Thereafter, plaintiff told numerous people about her allegations.



2
  Because the factual circumstances of this matter pertain predominantly to
defendant Vauss, references to "defendant" pertain solely to Vauss.
                                                                           A-0004-17T2
                                       2
      In October 2014, plaintiff filed this lawsuit alleging violations of the New

Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, claiming she

suffered "severe emotional distress and humiliation" as a result of defendant's

conduct.   Defendants filed separate answers denying plaintiff's allegations;

Vauss asserted several counterclaims, including defamation. 3

      At trial, plaintiff, a long-time employee of the Township, testified she

asked defendant to consider changing her job title to bring it more in line with

her duties if he became mayor. In response, defendant told plaintiff "to be his

girl on the side" and that he would "take care of" plaintiff and her husband, Carl

Brown, who also worked for the Township. Plaintiff stated defendant made

other quid pro quo remarks to her, including "I'm telling you, I got you. The

only thing you've got to do is be my girl."

      Further, plaintiff testified that on June 9, 2014, at her request, defend ant

accompanied her to check a leak in her basement office. Plaintiff said defendant

sexually assaulted her in the office then wiped himself with a paper towel, which

she discarded in a trash can.



3
  Although it is undisputed that the Township filed an answer to plaintiff's
complaint, the record on appeal only contains the answer and counterclaims filed
by Vauss. Prior to trial, the court partially granted plaintiff's motion for
summary judgment, dismissing defendant's remaining counterclaims.
                                                                           A-0004-17T2
                                        3
      Plaintiff acknowledged she and defendant had a consensual sexual

relationship for several months in 2005, claiming their relationship ended when

defendant sexually assaulted her in the bathroom at work. Plaintiff did not

report that incident. She remained friends with defendant.

      Defendant testified at trial and denied engaging in any misconduct

whatsoever. Rather, defendant claimed he and plaintiff mutually ended their

2005 consensual relationship. Like plaintiff, defendant acknowledged they

"remained friends."

      In support of his counterclaim, defendant said his reputation in the

community was harmed following plaintiff's sexual assault allegations against

him. For example, the Irvington Block Coalition, Inc., initiated a recall petition

after plaintiff's accusations were made public. The petition annexed plaintiff's

complaint and cited "[i]nappropriate consensual or nonconsensual sex acts

perpetrated upon a Township employee within the Township of Irvington

Municipal Building after business hours by Mayor/defendant." Additionally, in

August 2016, the National Association for the Advancement of Colored People

(NAACP) rescinded its award intended for defendant "[b]ecause of the sexual

assault and rape allegations . . . in this case."




                                                                          A-0004-17T2
                                          4
      Pertinent to this appeal, plaintiff's social worker, Joyce Lopez, testified

during plaintiff's case-in-chief. In response to pointed questions by plaintiff's

counsel, Lopez stated she did not find plaintiff to be delusional or psychotic, nor

evasive or untruthful.      According to Lopez's consultation notes, plaintiff

disclosed "she has panic attacks and becomes depressed[,]" and "is taking Paxil ,

prescribed by her medical doctor, for anxiety." Lopez referred plaintiff to Dr.

Gita Parikh, M.D., a psychiatrist, who treated plaintiff on one occasion.

      Dr. Parikh testified on defendant's behalf.        According to Dr. Parikh,

plaintiff suffers from "major depression with psychosis."              Additionally,

defendant's damages expert, Jacob Jacoby, M.D., Ph.D., a neuropsychiatrist,

testified that his diagnoses of plaintiff included psychosis, which he defined as

"a loss of touch with reality"; and delusional disorder, which he defined as "a

fixed false belief not shared by others, that is . . . a misinterpretation of events."

Dr. Jacoby also opined that plaintiff suffers from somatoform disorder based on

his observations that "a number of [her] aches and pains . . . seemed to be

accentuated."

      At the conclusion of the sixteen-day trial, during which numerous other

witnesses testified, the jury rejected plaintiff's claims, unanimously finding she

failed to prove defendant sexually assaulted her or made sexual comments


                                                                              A-0004-17T2
                                          5
toward her. Consequently, the jury did not reach the remaining questions, i.e.,

whether plaintiff suffered from quid pro quo sexual harassment or a hostile work

environment. By a vote of five to one, the jury determined plaintiff defamed

defendant "by way of oral statements[,]" and awarded him $7,000 in damages.

This appeal followed.

      On appeal, plaintiff argues the trial court erred by: permitting Dr. Jacoby

to opine about her credibility contrary to our bright-line principle of exclusion,

newly enunciated in Rodriguez v. Wal-Mart Stores, Inc., 449 N.J. Super. 577

(App. Div. 2017), aff'd in part, rev'd in part, ___ N.J. ___ (2019)4; excluding

defendant's statement to Brown during settlement negotiations; and committing

two other evidentiary errors, which cumulatively warrant a retrial. Plaintiff also

claims the court should have dismissed defendant's counterclaim because he

failed to establish actual damages and his claims are barred by the absolute

litigation privilege.

                                       II.

      Most of plaintiff's arguments challenge the admission or exclusion of

evidence. We therefore commence our review with our deferential standard of



4
 While the appeal was pending, the Court rendered its decision in Rodriguez.
The Court's decision does not affect our analysis here.
                                                                          A-0004-17T2
                                        6
review. Specifically, "the decision to admit or exclude evidence is one firmly

entrusted to the trial court's discretion." State v. Prall, 231 N.J. 567, 580 (2018)

(quoting Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-

84 (2010)). "In light of the broad discretion afforded to trial judges, an appellate

court evaluates a trial court's evidentiary determinations with substantial

deference[,]" and affords them "[c]onsiderable latitude." State v. Cole, 229 N.J.

430, 449 (2017) (second alteration in original) (citation omitted). The trial

court's determination will be affirmed "absent a showing of an abuse of

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

of E. Orange, 225 N.J. 400, 413 (2016) (alteration in original) (citation omitted).

Thus, "we will reverse an evidentiary ruling only if it 'was so wide off the mark

that a manifest denial of justice resulted.'" Ibid. (citation omitted).

                                        A.

      Initially, we address plaintiff's argument that Dr. Jacoby's diagnoses were

"thinly veiled claims that [she] was incapable of telling the truth with regard to

the precise subject matter of the trial" and, as such, he impermissibly opined

about her credibility. To support her argument, plaintiff relies heavily on our

decision in Rodriguez.




                                                                            A-0004-17T2
                                         7
      It is well established that evidence of sensory or mental defects has

unquestionable relevance in attacking the credibility of a witness. Velazquez v.

City of Camden, 447 N.J. Super. 224, 243 (App. Div. 2016) (recognizing

"evidence of a witness's mental state or condition is relevant to assess credibility

and explain the witness's conduct"). Such evidence may be introduced either on

cross-examination or through extrinsic evidence, State v. Johnson, 216 N.J.

Super. 588, 603 (App. Div. 1987), and is admissible to demonstrate a witness's

ability to perceive the facts was compromised at the time the events at issue

occurred, and to demonstrate difficulties with recollection. See State v. Henries,

306 N.J. Super. 512, 531 (App. Div. 1997) (holding a witness's severe

psychiatric disorders, which compromised his abilities both to accurately

perceive and to reliably recall, were admissible at trial); see also N.J.R.E. 607

(providing, in pertinent part, "any party including the party calling the witness

may examine the witness and introduce extrinsic evidence relevant to the issue

of credibility"). Extrinsic evidence is proof by others that contradicts or calls

into question the witness's version of the facts. See Green v. N.J. Mfrs. Ins. Co.,

160 N.J. 480, 495 (1999).

      Nonetheless, the introduction of a witness's mental condition is not

without limitations. We recently "categorically disallowed" testimony of "an


                                                                            A-0004-17T2
                                         8
expert witness who characterizes a plaintiff as a 'malingerer' or 'symptom

magnifier,' or some other negative term impugning the plaintiff's believability"

in the context of a civil jury trial. Rodriguez, 449 N.J. Super. at 596.

      In Rodriguez, the plaintiff sued for personal injuries, following an

accident in the defendant's store. Id. at 581. At trial, the defense presented

expert testimony from a neurologist, who opined that the plaintiff's complaints

of pain were consistent with "'somatization' . . . [defined as] 'a process where

individuals describe experiencing symptoms of various types that are not

accompanied by objective findings and interpretations.'" Id. at 584-85. The

expert was not a psychologist or psychiatrist, and acknowledged "at the Rule

104 hearing that he would need to involve a mental health expert to confirm

such a diagnosis." Id. at 584-85. However, the expert further opined that the

plaintiff was "malingering" or "magnifying her symptoms." Id. at 585, 599

      We concluded expert testimony classifying the plaintiff as a malingerer

would "usurp or unduly influence, as a practical matter, a jury's paramount role

in evaluating a plaintiff's credibility[,]" particularly since jurors "might too

readily accept the expert's gross assessment at face value, despite their own

critical independent role as the ultimate judges of witness credibility." Id. at

593-94. In doing so, we endorsed the principles set forth by the Eighth Circuit


                                                                           A-0004-17T2
                                        9
in Nichols v. American National Insurance Co., 154 F.3d 875 (8th Cir. 1998).

Id. at 596.

      Similar to plaintiff's claims here, the plaintiff in Nichols sued her former

employer for, among other things, sexual harassment and sexual assault,

claiming she suffered mental anguish, pain and suffering, and emotional

distress. 154 F.3d at 878-80. The defense presented expert testimony from a

psychiatrist, who diagnosed the plaintiff with a personality disorder and

"undifferentiated somatoform disorder." Id. at 882. The expert also opined that

the plaintiff had "poor psychiatric credibility"; "difficulty interpreting social

settings"; "a tendency to blur fantasy with reality"; "recall bias"; and

"malingering" for the purpose of "secondary" or "financial gain." Ibid.

      Finding the expert's testimony exceeded her diagnosis of plaintiff's

psychological state, the Eighth Circuit concluded the expert infringed on the

"jury's task" of assessing plaintiff's credibility. Id. at 883. In essence, the

expert's "thinly veiled comment on a witness'[s] credibility" caused the plaintiff

in Nichols to suffer undue prejudice, particularly since credibility was of

"critical importance." Id. at 884.

      Here, we first observe plaintiff's mental conditions were highly relevant

in assessing her credibility. Velazquez, 447 N.J. Super. at 243. Next, we


                                                                          A-0004-17T2
                                       10
distinguish Dr. Jacoby's testimony from the "malingering" or "symptom

magnification" testimony we denounced in Rodriguez and the Eight Circuit

rejected in Nichols. Specifically, Dr. Jacoby's testimony was limited to his

diagnosis of plaintiff's psychiatric conditions, based on his objective findings.

      For example, to support his delusional disorder diagnosis, Dr. Jacoby cited

plaintiff's response to the pain questionnaire, which was inconsistent with his

physical observations of her.      See Rodriguez, 449 N.J. Super. at 597-98

(recognizing a qualified expert is not precluded from testifying, "without using

pejorative   classification   labels   such   as     'malingering'   and   'symptom

magnification,' that a plaintiff's subjective complaints appear to be inconsistent

with objective medical test results or findings").

      Indeed, Dr. Jacoby's testimony stands in stark contrast to the defense

expert in Nichols who testified the plaintiff had "poor psychiatric credibility";

"a tendency to blur fantasy with reality"; and her recollection of the events was

affected by "malingering" and "secondary gain." 154 F.3d at 882. As the trial

court in the present case aptly recognized, "Secondary gain certainly goes to the

ultimate issue . . . and that [i]s clearly improper." The court also correctly

determined Dr. Jacoby could testify that his diagnoses included psychosis and

delusions, but he could not testify that "because she [has] . . . psychosis [the


                                                                             A-0004-17T2
                                        11
jury] can[not] believe her in this particular case[;] that [i]s improper." In sum,

although Dr. Jacoby diagnosed plaintiff with psychosis, somatic disorder, and

delusional disorder, he did not testify that those diagnoses impacted plaintiff's

credibility.

      Nor do we find the prejudicial effect of Dr. Jacoby's testimony

substantially outweighed its probative value, requiring its exclusion under

N.J.R.E. 403. See also State v. Torres, 183 N.J. 554, 580 (2005). Notably, in

Rodriguez, we held expert opinion testimony concerning malingering or

symptom magnification is always unduly prejudicial pursuant to N.J.R.E. 403,

but we did not generally foreclose a trial court's discretion to admit expert

testimony concerning objective clinical diagnoses of a patient that does not

morph into an impermissible credibility assessment. Here, the trial court's

decision to admit Dr. Jacoby's testimony, limited to his medical diagnoses based

on his testing and observations, accords with Rodriguez and was not unduly

prejudicial. We therefore conclude the trial court's ruling was not "so wide of f

the mark that a manifest denial of justice resulted." Griffin, 225 N.J. at 413.5


5
   Moreover, by introducing the subject of her mental condition through the
testimony of Lopez in her case-in-chief, plaintiff "opened the door" to her
mental condition. See State v. James, 144 N.J. 538, 554 (1996). In particular,
Lopez testified that plaintiff did not suffer from "any type of personality


                                                                          A-0004-17T2
                                       12
                                        B.

       We next address plaintiff's contention that the court erred in excluding a

statement made by defendant to Brown that plaintiff surreptitiously recorded

during settlement negotiations in her attorney's office. In particular, defendant

offered to financially compensate Brown, stating Brown "may be the victim in

this scenario."   Plaintiff maintains, as she did before the trial court, that

statement implies a consensual-sex defense, thereby contradicting defendant's

deposition and trial testimony. Accordingly, plaintiff claims the statement is

"otherwise admissible" pursuant to N.J.R.E. 408 6 to impeach defendant's trial

testimony. Plaintiff's argument is unavailing.


disorder"; did not suffer from "any mental illness"; did not have "psychotic
thought patterns"; did not "suffer from any type of psychosis"; and did not have
"perception reality split." Further, plaintiff's counsel elicited testimony from
Lopez that she did not "ever find [plaintiff] to be evasive or determine[] that she
was [not] telling [Lopez] the truth, in any way."
6
    N.J.R.E. 408 provides:

             When a claim is disputed as to validity or amount,
             evidence of statements or conduct by parties or their
             attorneys in settlement negotiations, . . . including
             offers of compromise or any payment in settlement of a
             related claim, shall not be admissible to prove liability
             for, or invalidity of, or amount of the disputed claim.
             Such evidence shall not be excluded when offered for
             another purpose; and evidence otherwise admissible


                                                                           A-0004-17T2
                                       13
      If, as plaintiff argues, the statement constitutes defendant's "tacit

acknowledgment" of sexual relations with her, the statement tends "to prove

liability" for plaintiff's LAD claim for sexual harassment.         N.J.R.E. 408.

Accordingly, the trial court correctly excluded defendant's statement,

recognizing it was made during "conversations [with] attorney[s] trying to

resolve [the] matter[, therefore its admission] . . . would have a chilling effect

on settlement negotiations which is one of the reasons why the . . . [R]ule[]

exists."   Additionally, because the statement was vague, and not a clear

admission, the trial court also properly excluded it under N.J.R.E. 403.

                                        C.

      We next turn to plaintiff's argument that the cumulative effect of the trial

court's alleged errors warrants a retrial. "An appellate court may reverse a trial

court's judgment if 'the cumulative effect of small errors [is] so great as to work

prejudice[,]'" rendering the trial unfair. Torres v. Pabon, 225 N.J. 167, 190

(2016) (first alteration in original) (quoting Pellicer ex rel. Pellicer v. St.

Barnabas Hosp., 200 N.J. 22, 53 (2009)).




            shall not be excluded merely because it was disclosed
            during settlement negotiations.


                                                                           A-0004-17T2
                                       14
      In the present case, plaintiff contends the cumulative effect of two of the

court's evidentiary errors warrants a new trial. For the first time on appeal,

plaintiff contends the court erred in permitting Dr. Parikh's testimony

diagnosing plaintiff as "psychotic."           Plaintiff claims this testimony

impermissibly bolstered Dr. Jacoby's opinion that plaintiff was delusional.

      Secondly, plaintiff contends the trial court erred by admitting into

evidence an entry, which she posted to her Facebook page four months before

she testified at trial. In short, the post described plaintiff's encounter with a

spirit. At trial, when questioned about the post, plaintiff confirmed she was

"positive" the event happened. Specifically, a spirit "got in to bed with [her]."

      Having considered these arguments in light of the record and controlling

legal principles, we conclude they lack sufficient merit to warrant discussion in

our written opinion. R. 2:11-3(e)(1)(E). Instead, we note: (1) Dr. Parikh's

testimony was based on her evaluation of plaintiff as a treating psychiatrist, and

was not inconsistent with our holding in Rodriguez; and (2) the trial court

properly determined the Facebook post impacted liability and damages because

plaintiff's "mental state [was] at issue in this case." In sum, we discern no

cumulative error rendering the trial unfair.

                                       III.


                                                                          A-0004-17T2
                                       15
      Finally, we view plaintiff's claim that the trial court erred in failing to

dismiss defendant's defamation counterclaim under Rule 4:37-2 through the

same lens as the trial court. See Smith v. Millville Rescue Squad, 225 N.J. 373,

397 (2016). A motion made pursuant to Rule 4:37-2(b) "shall be denied if the

evidence, together with the legitimate inferences therefrom, could sustain a

judgment in [the non-movant's] favor." Accordingly, "The motion should only

'be granted where no rational juror could conclude that the plaintiff marshaled

sufficient evidence to satisfy each prima facie element of a cause of action. '"

Millville Rescue Squad, 225 N.J. at 397 (citation omitted).

      To establish a cause of action for defamation, a claimant must prove by

clear and convincing evidence: (1) damages resulting from (2) the assertion of a

false and defamatory statement concerning the claimant (3) made to third parties

in a non-privileged situation, (4) with either (a) knowledge that those statements

were false, (b) a reckless disregard for the truth or falsity of the statements, or

(c) negligence in failing to ascertain the truth or falsity of the statements,

depending on the private or public nature of the plaintiff and of the subject

matter. G.D. v. Kenny, 205 N.J. 275, 292-93 (2011); DeAngelis v. Hill, 180

N.J. 1, 12-13 (2004). "As a general rule, a statement is defamatory if it is false,

communicated to a third person, and tends to lower the subject's reputation in


                                                                           A-0004-17T2
                                       16
the estimation of the community or to deter third persons from associating with

him." Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 164-65 (1999); accord W.J.A.

v. D.A., 210 N.J. 229, 238 (2012). Further, it is well established that "[a] prime

example" of a statement that is defamatory per se "is [a] false attribution of

criminality." Romaine v. Kallinger, 109 N.J. 282, 291 (1988). Plaintiff's false

statements about defendant clearly fell within this category.

      Plaintiff argues, as she did before the trial court, that defendant's

defamation claim was barred by the litigation privilege. In particular, plaintiff

contends the genesis of the recall petition and rescission of the NAACP's award

was the allegations of sexual harassment and sexual assault alleged in her

complaint, which is "absolutely privileged." Plaintiff's argument is unavailing.

      "Although defamatory, a statement will not be actionable if it is subject to

an absolute or qualified privilege. A statement made in the course of judicial,

administrative, or legislative proceedings is absolutely privileged and wholly

immune from liability." Erickson v. March & McLennan Co., 117 N.J. 539, 563

(1990) (citation omitted).         "The absolute privilege applies to 'any

communication (1) made in judicial or quasi-judicial proceedings; (2) by

litigants or other participants authorized by law; (3) to achieve the objects of the




                                                                            A-0004-17T2
                                        17
litigation; and (4) that have some connection or logical relation to the action. '"

Hawkins v. Harris, 141 N.J. 207, 216 (1995) (citation omitted).

      Importantly, there exists an interrelationship between the third and fourth

prongs. "Whether the statements were made to achieve the objects of the

litigation depends on their relationship to the [action]." Id. at 218 (emphasis

omitted). The purpose of the litigation privilege is "to encourage open channels

of communication and the presentation of evidence in judicial proceedings." Id.

at 216-17 (internal quotation marks and citation omitted).

      Affording defendant the benefit of the evidence adduced at trial, "together

with the legitimate inferences therefrom," a reasonable jury could conclude that

plaintiff published her complaint "to other third parties."           Here, those

communications, which spurred the recall petition and rescission of the NACCP's

award were not designed "to achieve the objects of the litigation" nor did they

have "some connection or logical relation to the action." Id. at 216.

      Moreover, plaintiff made numerous oral statements to several third parties

shortly after the alleged June 9, 2014 sexual assault, prior to the filing of her

complaint. For example, she told her co-workers that defendant touched her

buttocks and breast, launching an internal investigation by the Township, and a

criminal investigation by the Essex County Prosecutor's Office. As we have


                                                                           A-0004-17T2
                                       18
long recognized, the litigation privilege "does not include a statement given to

investigating police implicating another in criminal activity. Immunity does not

extend to statements published outside of a judicial proceeding to per sons not

connected with it." Citizens State Bank of N.J. v. Libertelli, 215 N.J. Super.

190, 198 (App. Div.1987) (footnote omitted).        Notably, plaintiff does not

challenge defendant's claim that she authored and sent a defamatory letter to the

Irvington Herald, which was authenticated by defendant's forensic expert. In

sum, we agree with the trial court that the litigation privilege does not shield

plaintiff's statements here.

      Turning to plaintiff's contention that defendant failed to demonstrate

actual damages, we first observe plaintiff did not specifically address that

argument before the trial court. Before us, she claims the alleged defamatory

statements surrounding the recall petition, the NAACP's rescission of its award,

and the anonymous letter to the Irvington Herald did not cause defendant to

suffer economic, physical, or reputational damages or extreme emotional

distress.   Rather, plaintiff emphasizes defendant's testimony that having

"negative things" said about him was part of his political "business" and he

"c[ould] handle it." Based on our review of the record, we conclude plaintiff's

claim lacks merit.


                                                                         A-0004-17T2
                                      19
      Where, as here, the matter concerns a public figure or public concern, the

claimant must prove "actual damages."         See Rocci v. Ecole Secondaire

Macdonald-Cartier, 165 N.J. 149, 156-57 (2000). "Actual damages . . . refer[]

to the real losses flowing from the defamatory statement[,]" and may either be

deemed "special" or "general." W.J.A., 210 N.J. at 239; Nuwave Inv. Corp. v.

Hyman Beck & Co., 221 N.J. 495, 499 (2015). Special damages "compensate a

plaintiff for specific economic or pecuniary loss"; general damages, on the other

hand, "address harm that is not capable of precise monetary calculation[,]" such

as an "'impairment to reputation and standing in the community,' along with

personal humiliation, mental anguish, and suffering to the extent that they flow

from the reputational injury." Nuwave, 221 N.J. at 499 (quoting W.J.A., 210

N.J. at 239); see also Rocci, 165 N.J. at 155. A plaintiff relying on general

damages "should offer some concrete proof that his reputation has been injured."

Sisler v. Gannett Co., 104 N.J. 256, 281 (1986).

      We are satisfied from our review of the record that defendant

demonstrated a prima facie claim of actual damages, sufficient to support the

trial court's denial of plaintiff's motion for involuntary dismissal pursuant to

Rule 4:37-2. For example, defendant testified he expended "[t]ime, energy,

[and] resources" in challenging the recall petition; was deprived of an award by


                                                                         A-0004-17T2
                                      20
the NAACP; and "ha[d] to explain to [his] daughter how someone could say that

[he] assaulted . . . or that [he] raped them [sic]." Based on this testimony, and

all reasonable inferences that could be deduced therefrom, we are satisfied a

rational jury could find defendant sustained general damages for "impairment to

reputation and standing in the community," and "personal humiliation," which

"flow[ed] from his reputational injury." Nuwave, 221 N.J. at 499.

      Affirmed.




                                                                         A-0004-17T2
                                      21
