                        NOT FOR PUBLICATION WITHOUT THE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-3815-15T3

MAUREEN GREENFELD,

        Plaintiff-Appellant,

v.

B.C.T. IMPORTS, INC.,
d/b/a TOYOTA UNIVERSE, INC.,
and BOB CIASULLI AUTO GROUP,
INC.,

        Defendants-Respondents,

and

CHRISTIAN SEMPRIVIVO,

     Defendant.
________________________________

              Argued March 15, 2018 – Decided June 25, 2018

              Before Judges Simonelli, Haas and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Law Division, Passaic County, Docket No. L-
              1826-13.

              Ronald L. Lueddeke argued the cause for
              appellant (Lueddeke Law Firm, attorneys;
              Ronald L. Lueddeke and Karri Lueddeke, on the
              brief).
           Resa   T.  Drasin   argued   the   cause   for
           respondents (Woehling Law Firm, PC, attorneys;
           Resa T. Drasin, on the brief).

PER CURIAM

     Plaintiff, Maureen Greenfeld, appeals from a final judgment

dismissing her complaint that the trial judge entered after a jury

unanimously found in favor of defendants, B.C.T. Imports, Inc.,

d/b/a Toyota Universe, Inc., (Toyota Universe), and Bob Ciasulli

Auto Group, Inc.1 Plaintiff, a former employee of Toyota Universe,

sued defendants under the Conscientious Employee Protection Act

(CEPA), N.J.S.A.    34:19-1 to -14, the New Jersey Law Against

Discrimination, N.J.S.A. 10:5-1 to -42, and for violations of New

Jersey's   Wage   and   Hour   Law,   N.J.S.A.   34:11-56a   to   -56a38.

Plaintiff filed suit against Toyota Universe when it terminated

her employment after she filed wage and hour and discrimination

claims with the New Jersey Department of Labor (NJDOL), the United

States Department of Labor (USDOL), and the Equal Employment

Opportunity Commission (EEOC).

     Plaintiff's arguments on appeal focus upon rulings made by

the trial judge barring the admission into evidence of an audit

file from the NJDOL that she claims the parties had agreed pre-

trial to admit into evidence.     She also challenges the judge's sua


1
  Plaintiff voluntarily dismissed her complaint against defendant
Christian Semprivivo.

                                      2                           A-3815-15T3
sponte decision to charge the jury with an allegedly unwarranted

curative instruction in response to comments made by her attorney

during his closing argument, and the judge's denial of plaintiff's

motion for a new trial.      For the reasons stated herein, we vacate

the judgment entered in favor of defendants and remand the matter

for a new trial.

     The   facts   adduced   at   trial   are   summarized   as   follows.

Plaintiff was hired by Toyota Universe as its payroll administrator

in June 2002 and was paid a $620 weekly salary.        She briefly left

to work at another company, but was rehired in October 2005 at a

weekly salary of $700 and promised an increase to $750 per week

after three months.    At the time Toyota Universe rehired her, a

note on her payroll change notice stated that "[plaintiff] is [a]

very professional[,] organized individual" and that "she is an

asset to [the] company."       Despite her favorable evaluation, she

was never paid the increase promised after three months and, in

fact, her salary was decreased at one point due to cutbacks.              By

2006 her salary was increased to $775 per week, which was her

salary upon her termination in August 2012.         During her years of

employment, plaintiff was never paid for working overtime.

     On April 9, 2012, plaintiff sent a letter to her supervisor,

Patricia Kornfeld, stating that she had not been given a raise

since April 2006, and that she had worked more than her required

                                    3                              A-3815-15T3
hours in the first eight weeks of 2012, but had not received

overtime pay.       Kornfeld consulted with the company's general

manager Semprivivo, and plaintiff was given a $20 per week increase

– a total of $795 per week – effective the first payroll of June

2012.    According to Kornfeld, when she told plaintiff about the

raise,   plaintiff    responded,     "that's    it?"      The   conversation

concluded with Kornfeld giving plaintiff payroll forms for two

other employees who were clerks in the same department, since

plaintiff was the payroll administrator.

     Plaintiff was "immediately agitated" when she saw that she

received a lower raise than the other employees, who were younger

than her.     According to defendants, the two employees received

raises based on promotions, which Toyota Universe had not given

to plaintiff.      On June 8, 2012, plaintiff and Semprivivo met to

discuss plaintiff's dissatisfaction with her raise.             The parties

disputed    what   occurred   at   that   meeting,     specifically   whether

plaintiff asked to be fired so she could collect unemployment.               It

was undisputed, however, that Semprivivo told her that she was

"maxed out, top of the scale, [so] why not retire[,]" and offered

her the possibility of moving into new positions that would pay

more, which plaintiff rejected.           According to plaintiff, she was

not told during this meeting that she would be fired.                  Toyota

Universe asserts that the decision to terminate plaintiff was made

                                      4                               A-3815-15T3
after plaintiff asked Semprivivo to fire her during the June 8

meeting.

     On June 9, 2012, plaintiff sent letters to the NJDOL,2 the

USDOL, and the EEOC, alleging that Toyota Universe was in violation

of numerous labor laws, including non-payment of overtime for

certain      employees,      improper     payroll   deductions,        age

discrimination,    hostile    workplace   environment,   and   disparate

treatment.   Plaintiff claimed she became concerned in January 2012

about her classification as an exempt employee when she reviewed

a newsletter from the company's payroll service on that topic.

However, plaintiff admitted that she would not have sent the

letters had she been given the raise that she wanted.

     According to plaintiff, shortly after filing her complaints,

she received a phone call from Daniel Pope, a representative from

the NJDOL.    After the NJDOL sent a notice of audit on June 14,

2012, Pope visited the dealership on June 25, 2012, to conduct an

audit.    Plaintiff was not aware if her employer knew she had filed

complaints with the NJDOL.         In anticipation of Pope's visit,




2
   Plaintiff later withdrew her complaint with the NJDOL in order
to pursue the underlying action in the Law Division.



                                    5                             A-3815-15T3
Kornfeld had plaintiff put the necessary payroll records together

for Pope's review.3

       After the audit, the NJDOL issued to Toyota Universe a notice

of alleged violations.    In response, Toyota Universe created job

classifications for the subject employees, including plaintiff,

which described them as exempt employees not entitled to overtime

pay.

       Plaintiff stated that she was misclassified as an exempt

employee as she was not employed in an administrative capacity and

did not exercise "independent judgment[.]"   As a result, plaintiff

believed that if she was properly classified, she would have

received nearly $5800 in overtime pay because she was not an exempt

employee.    Plaintiff never discussed being misclassified with her

employer before contacting the NJDOL.




3
   As discussed infra, although not disclosed to the jury, the
audit files revealed that the NJDOL made a determination that
Toyota Universe had not paid overtime to a few employees who were
eligible. In response to its findings, Toyota Universe created
job descriptions for various positions, including plaintiff's, and
explained to the NJDOL why the employees working in those positions
were not entitled to overtime pay. The NJDOL amended its findings,
cited Toyota Universe for limited violations, and entered into an
agreement with Toyota Universe that required certain payments to
a few employees, including plaintiff who was entitled to
approximately $3700. According to the agreement signed by Toyota
Universe and the NJDOL, the finding would be the basis for a prior
offense if Toyota violated the wage and hour laws in the future.

                                  6                          A-3815-15T3
     Prior to the audit, on June 15, 2012, Semprivivo called

plaintiff    into   his    office       to       discuss   plaintiff's    continued

employment.     According to plaintiff, he told her "that he was

prepared to give [her] what [she] wanted and [when she] questioned

[what] that [was,] he said [they] will terminate [her] as long as

[she]   sign[ed]    a    waiver    of    voluntary         separation[,   to     which

plaintiff] said absolutely not."                 Plaintiff never signed a waiver

of any claim.

     Semprivivo stated that at the June 15 meeting, plaintiff

"changed her mind" and wanted to stay, but he decided to let her

go anyway.    After the meeting, he spoke with Kornfeld and when he

told her he was terminating plaintiff, she asked him to delay

plaintiff's termination until August due to staffing concerns.

According to Semprivivo, the decision to terminate plaintiff was

made on June 15, but her termination was delayed per Kornfeld's

request.     At the time the decision was made to fire plaintiff,

Toyota Universe was not aware that she had filed claims with the

three agencies.         During the remainder of June, there were no

further     discussions     with        plaintiff,         nor   was     there      any

communication between Toyota Universe and the agencies plaintiff

had contacted until the notification it received about the audit.

     In early July 2012, Toyota Universe received a notification

from the EEOC advising it of the agency's receipt of plaintiff's

                                             7                                 A-3815-15T3
complaint.   Upon Toyota Universe's receipt of the notice, Kornfeld

confronted plaintiff asking her what it was about, and less than

one month later, on August 8, 2012, Kornfeld signed a termination

report for plaintiff, officially terminating plaintiff on August

15, 2012.    Toyota Universe contends that since the decision to

fire plaintiff was made in early June 2012 – before the audit was

conducted and letters from the labor agencies arrived at the

dealership – her termination was not a result of her alleged

whistle-blowing activity.     This is because no one at Toyota

Universe knew that plaintiff filed the complaints when she did,

and it had already made the decision to terminate her employment

in June. Rather, Semprivivo testified that he terminated plaintiff

because of her "unhappiness with financials[,]" her "not getting

along with anybody[, a]nd due" to a negative experience Semprivivo

previously had with a disgruntled employee while he was employed

by another car dealership across the street.    However, plaintiff

had no idea what that incident at the other dealership was about,

and it was also undisputed that she had no involvement with the

other dealership.

     After considering the evidence, the jury returned a verdict

of no cause, finding that plaintiff was not terminated because of

her age or because she filed complaints with the government

agencies.    It also found that defendants proved that plaintiff

                                 8                          A-3815-15T3
"was employed in a bona fide administrative capacity and therefore

exempt from overtime pay[.]"        Based on the jury's verdict, the

trial judge entered judgment dismissing the complaint.             Plaintiff

filed a motion for new trial, which the judge denied.         This appeal

followed.

       We   first   address   plaintiff's   challenge   to   the    curative

instruction that the trial judge gave to the jury in response to

comments her counsel made about the NJDOL's amended notice of

alleged violations, one of the two documents from the audit file

that the judge admitted into evidence.

       During his summation, counsel stated that the document:

              seals the deal on the reasonable belief as to
              Wage and Hour because the [NJDOL] themselves
              found notices of violations. So, she believed
              them, they believed them, . . . they did the
              audit.   They confirmed all her numbers and
              they issued a notice of alleged violation.
              So, it went from reasonable belief to . . . a
              notice of allegation.

       After plaintiff’s closing argument, without any objection by

defendants' attorney, the judge called both counsel into chambers

to discuss plaintiff's counsel's reference to the NJDOL having

"confirmed all of [plaintiff's] numbers."           In response to the

judge pointing out to counsel that the amended notice of alleged

violations was not a determination and was not evidence indicating

that    the     NJDOL   believed    plaintiff,    plaintiff's       counsel


                                     9                               A-3815-15T3
acknowledged that the judge was correct and apologized for the

misstatement.   The judge determined that a curative instruction

was necessary even though the defense did not raise an objection

during closing arguments.   Plaintiff's counsel did not object to

the judge making a curative instruction.

     After the break, without any input from counsel, the judge

instructed the jury:

          [T]here's just one thing I do want to clarify.
          There was a comment that was made in
          plaintiff[']s   summation   referencing   [the
          amended notice of alleged violations] which
          came from [the NJDOL]. It had to deal with
          the . . . Wage and Hour claim, and the comment
          was something to the effect that you know,
          that the [NJDOL] believed that particular
          allegation or complaint being made by the
          plaintiff, and that's really inaccurate. That
          document does not indicate any determination
          or belief on the part of the [NJDOL]. It's a
          mere allegation. What [the NJDOL is] simply
          doing is indicating that there is now an
          allegation. There is no determination of the
          accuracy of that and it should not be viewed
          in that sense. It's merely an allegation. It
          is not a determination of the correctness of
          the allegation.   It is not a belief in the
          accuracy of the allegation.      It is not a
          confirmation of the numbers.        It is an
          allegation. An allegation means a charge.

     Plaintiff argues that the judge's instruction was improper

because had the entire audit file been admitted, it would have

established that her attorney's comment was correct.   We disagree.




                               10                           A-3815-15T3
     We     conclude    that    plaintiff's     contention      is       "without

sufficient merit to warrant discussion in a written opinion[.]"

R. 2:11-3(e)(1)(E).          Suffice it to say, plaintiff's counsel's

summation should have been limited to comments about only admitted

evidence.    "Comments during summation . . . should be centered on

the truth and counsel should not 'misstate the evidence nor distort

the factual picture.'"         Tartaglia v. UBS PaineWebber, Inc., 197

N.J. 81, 128 (2008) (quoting Bender v. Adelson, 187 N.J. 411, 431

(2006)).     Here,     the   judge   properly   identified     an    undisputed

improper characterization of the evidence and issued a proper

curative instruction.         See State v. Vallejo, 198 N.J. 122, 134

(2009); State v. Winter, 96 N.J. 640, 647 (1984).                   The amended

notice of alleged violations clearly was not as counsel stated, a

confirmation    that     plaintiff     was    correct,   and        as   counsel

acknowledged, he should not have led the jury to believe otherwise.

     We turn next to plaintiff's argument challenging the trial

judge's exclusion of the remaining documents in the NJDOL's audit

file, which had been produced by defendants in discovery, but were

barred sua sponte by the judge, despite the parties' alleged pre-

trial stipulation to its admission. Plaintiff attempted to proffer

the audit file to prove that she had a reasonable belief that




                                      11                                  A-3815-15T3
Toyota   Universe   acted   unlawfully   as    required   by   CEPA,4    by

misclassifying her position and failing to pay her overtime.            The

trial judge barred the evidence after he concluded that it was

unduly prejudicial, and that plaintiff waived the right to contest

issues within the audit file – i.e. the amount of overtime pay

owed to her, if any - when she commenced the lawsuit instead of

appealing through the NJDOL.    The judge stated that admitting the

documents would require "a trial within a trial" as to the accuracy

of the NJDOL's ultimate conclusions.          Apparently, the judge was

concerned that the file would permit the jury to rely upon the

NJDOL's findings as to plaintiff's claims rather than the evidence

presented at trial.

     The judge excluded almost the entire audit file despite the

fact that defendants never objected to its admission.          As already

noted, he only allowed two documents from the file: the notice of

audit and the amended notice of alleged violations.            He did not

allow any documents indicating the NJDOL's final determinations

as to whether defendants violated any wage and hour laws or




4
   As explained in more detail infra, CEPA bars an employer from
"retaliatory action against an employee because the employee"
objects to participating in "any activity . . . which the employee
reasonably believes[] is in violation of a law . . . ." N.J.S.A.
34:19-3(c)(1).

                                 12                               A-3815-15T3
regulations.    Plaintiff contends on appeal that the exclusion of

the evidence was improper.       We agree.

      Our review of a trial judge's evidential rulings is "limited

to examining the decision for abuse of discretion."             Hisenaj v.

Kuehner, 194 N.J. 6, 12 (2008) (citing Brenman v. Demello, 191

N.J. 18, 31 (2007)).         "When a trial court admits or excludes

evidence, its determination is 'entitled to deference 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) (quoting State v. Brown,

170   N.J.   138,   147   (2001)).    Therefore,   "we   will   reverse   an

evidentiary ruling only if it 'was so wide off the mark that a

manifest denial of justice resulted.'"       Ibid. (citations omitted).

The "substantial deference [owed] to a trial court's evidentiary

rulings[,]" Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App.

Div. 1999) (quoting State v. Morton, 155 N.J. 383, 453 (1998)),

includes those "determining both the relevance of the evidence to

be presented and whether its probative value is substantially

outweighed by its prejudicial nature."        Green v. N.J. Mfrs. Ins.

Co., 160 N.J. 480, 492 (1999) (citing State v. Carter, 91 N.J. 86,

106 (1982)).

      At the outset, we reject plaintiff's contention that if

parties to a litigation stipulated to certain evidence, a trial

                                     13                            A-3815-15T3
judge is prevented from exercising his or her obligations as

"gatekeeper" and excluding the proffered evidence.             While N.J.R.E.

101(a)(4) provides that if "no bona fide dispute between the

parties [exists] as to a relevant fact, the judge may permit that

fact to be established by stipulation or binding admission[,]" in

civil actions, the proffered evidence is still subject to exclusion

under N.J.R.E. 403.        However, a party losing the benefit of

stipulated evidence must still receive his or her day in court

with respect to the stipulated issue.              "[T]he litigant who is

being prejudiced by the court's non-adherence to the stipulation

[should] be given the same opportunity to present his[ or her]

proofs as he[ or she] would have received had the stipulation not

been entered on the record."          Negrotti v. Negrotti, 98 N.J. 428,

433 (1985).

      Here, plaintiff attempted to introduce the audit file through

a   stipulation    to   show   that    she    "reasonably     believed"   that

defendants were violating the wage and hour laws and to prove

causation between plaintiff's whistle-blowing activity and her

termination.      Because of the alleged stipulation, plaintiff did

not call Pope as a witness.      When the trial judge objected to the

documents being admitted, defendants disputed that a stipulation

existed   and     argued   plaintiff       mischaracterized    the   parties'



                                      14                              A-3815-15T3
agreement.     They claimed they never stipulated to the admission

of the documents "for the truth of the matter asserted therein."

     We need not resolve the dispute about whether there was a

stipulation as we conclude that even if defendants had agreed to

the audit file's admission, the trial judge was not obligated to

enter it into evidence if he properly determined that it was

otherwise    inadmissible.     Having      reached   that   conclusion,      we

address whether the trial judge abused his discretion by refusing

to admit the proffered documents.

     Plaintiff argues that the trial judge erred in excluding the

balance of the audit file because it was relevant to the first and

fourth prongs of her CEPA claim and not unduly prejudicial.                  We

must consider her argument in light of the legislative intent

behind CEPA and plaintiff's burden of proof.

     "[T]he    legislative    purpose      animating    CEPA    is . . .     to

'protect and encourage employees to report illegal or unethical

workplace activities and to discourage public and private sector

employers from engaging in such conduct.'"             Lippman v. Ethicon,

Inc., 222 N.J. 362, 378 (2015) (quoting Abbamont v. Piscataway

Twp. Bd. of Educ., 138 N.J. 405, 431 (1994)).                  Because it is

remedial     legislation,    courts    are   to   construe      the   statute

"liberally to achieve its remedial purpose."            Barratt v. Cushman



                                      15                              A-3815-15T3
& Wakefield of N.J., Inc., 144 N.J. 120, 127 (1996) (citing

Abbamont, 138 N.J. at 431).

     In pertinent part, the statute provides:

          An employer shall not take any retaliatory
          action against an employee because the
          employee does any of the following:

               . . . .

          c. Objects to, or refuses to participate in
          any activity, policy or practice which the
          employee reasonably believes:

          (1) is in violation of a law, or a rule or
          regulation promulgated pursuant to law,
          including any violation involving deception
          of, or misrepresentation to, any shareholder,
          investor,    client,    patient,    customer,
          employee,   former   employee,   retiree   or
          pensioner of the employer or any governmental
          entity; or

          (2) is fraudulent or criminal, including any
          activity, policy or practice of deception or
          misrepresentation    which    the    employee
          reasonably    believes   may    defraud   any
          shareholder,   investor,   client,   patient,
          customer, employee, former employee, retiree
          or   pensioner   of  the   employer   or  any
          governmental entity . . . .

          [N.J.S.A. 34:19-3(c)(1) to (2).]

     Prohibited   retaliatory   action   includes   an   employee's

suspension from or termination of his or her employment.   N.J.S.A.

34:19-2(e); Donelson v. DuPont Chambers Works, 412 N.J. Super. 17,

29 (App. Div. 2010), rev'd on other grounds, 206 N.J. 243 (2011).



                                16                          A-3815-15T3
     To establish a CEPA violation, a plaintiff must demonstrate

that:

          (1) he or she reasonably believed that his or
          her employer's conduct was violating either a
          law, rule, or regulation promulgated pursuant
          to law, or a clear mandate of public policy;

          (2) he or she performed a "whistle-blowing"
          activity described in [N.J.S.A.] 34:19-3(c);

          (3) an adverse employment action was taken
          against him or her; and

          (4) a causal connection exists between the
          whistle-blowing activity and the adverse
          employment action.

          [Lippman,    222     N.J.    at   380   (citations
          omitted).]

     A plaintiff who brings a CEPA claim is not required to show

that his or her employer's conduct was actually fraudulent.          See

Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003).           Rather, "the

plaintiff simply must show that he or she 'reasonably believes

that to be the case.'"       Ibid. (quoting Estate of Roach v. TRW,

Inc., 164 N.J. 598, 613 (2000)).

     Determining whether the audit file should have been admitted

depends first upon whether it was relevant to plaintiff meeting

the requirements for proving her CEPA claim.      "Our analysis of the

trial [judge]'s evidentiary ruling begins with the question of

relevancy, 'the hallmark of admissibility of evidence.'"       Griffin,

225 N.J. at 413 (quoting State v. Darby, 174 N.J. 509, 519 (2002)).

                                  17                            A-3815-15T3
Relevant evidence is defined as evidence that has "a tendency in

reason    to   prove     or   disprove   any   fact   of    consequence   to   the

determination of the action."            Ibid. (quoting N.J.R.E. 401).

      Here, neither defendants nor the trial judge ever challenged

the relevancy of the audit files or their admissibility as business

records.5      We agree that the file's relevancy was established by

its "logical connection between the proffered evidence and a fact

in issue[,]" ibid. (alteration in original) (quoting Green, 160

N.J. at 492), specifically whether plaintiff reasonably believed

her employer engaged in fraudulent wrongful labor practices and

whether     she    was   terminated      for   reporting     Toyota   Universe's

practices.        However, even where there is some logical relevancy,

the judge must rely on his or her "own experience, his [or her]

general knowledge, and his [or her] understanding of human conduct

and motivation" before admitting evidence.                 State v. Allison, 208

N.J. Super. 9, 17 (App. Div. 1985) (citation omitted). "[R]elevant

evidence may be excluded if its probative value is substantially

outweighed by the risk of (a) undue prejudice, confusion of issues,

or misleading the jury or (b) undue delay, waste of time, or

needless presentation of cumulative evidence."                N.J.R.E. 403; see

also Griffin, 225 N.J. at 420.



5
    See N.J.R.E. 803(c)(6).

                                         18                               A-3815-15T3
      We consider, therefore, the judge's determination that the

evidence was unduly prejudicial, warranting its exclusion under

N.J.R.E. 403.     The burden is on "[t]he party seeking the exclusion

of the evidence [to] demonstrate that one or more of the factors

listed in N.J.R.E. 403 substantially outweighs the probative value

of the evidence."       Griffin, 225 N.J. at 420 (citations omitted).

In   general,   "[e]vidence     claimed     to   be   unduly   prejudicial      is

excluded   only    when   its   'probative       value   is   so   significantly

outweighed by [its] inherently inflammatory potential as to have

a probable capacity to divert the minds of the jurors from a

reasonable and fair evaluation' of the issues in the case."                   Id.

at 421 (alteration in original) (citations omitted).                  "[W]hen a

party challenges the admission of evidence under N.J.R.E. 403, the

question   is     not   whether    the    challenged      testimony    will     be

prejudicial to the objecting party, 'but whether it will be

unfairly   so.'"        Ibid.   (emphasis    added)      (citations    omitted).

"[E]vidence that has overwhelming probative worth may [still] be

admitted even if highly prejudicial."            Rosenblit v. Zimmerman, 166

N.J. 391, 410 (2001) (quoting Green, 160 N.J. at 496).

      A finding that probative evidence is prejudicial does not

necessarily warrant exclusion if a limiting instruction under




                                     19                                  A-3815-15T3
N.J.R.E. 1056 would minimize its potential undue prejudice, and

address a court's concern about confusing a jury.                      See State v.

Cole, 229 N.J. 430, 455 (2017) ("[T]otal exclusion of evidence is

error     where     prejudice      can     be     minimized     through       limiting

instructions or other means[.]"                 (citing Ocasio v. Amtrak, 299

N.J. Super. 139, 159-60 (App. Div. 1997))).

      Here,    the    trial     judge     did     not    consider      any    limiting

instruction and excluded the file, because "to put the entire

content of the audit file[], before this jury, would . . . have

unduly    confused    the    issues,      [and]    would   have     been     extremely

prejudicial."       He reached that conclusion without ever discussing

how probative the audit file was to plaintiff's claim and whether,

despite       its     probative          value,     it     remained          "undu[ly]

prejudice[ial]," as contemplated by N.J.R.E. 403, so as to warrant

exclusion,        rather    than    admission        subject      to    a     limiting

instruction.         The   audit   file     was    clearly     prejudicial      as    it


6
    The Rule provides:

            When evidence is admitted as to one party or
            for one purpose but is not admissible as to
            another party or for another purpose, the
            judge, upon request, shall restrict the
            evidence to its proper scope and shall
            instruct the jury accordingly, but may permit
            a party to waive a limiting instruction.

            [N.J.R.E. 105.]


                                          20                                   A-3815-15T3
supported plaintiff's claim that she had a reasonable belief that

Toyota Universe was violating labor laws or regulations, but

without weighing the audit file's probative value against its

prejudicial    effect,   the   trial   judge   mistakenly   exercised   his

discretion in excluding it based solely on its prejudicial nature.

     Because the trial judge improperly barred the admission of

the balance of the audit file, we conclude that he erred in denying

plaintiff's motion for a new trial under Rule 4:49-1.           The judge

denied this motion stating that plaintiff had "enough evidence"

to prove her claims, and reiterated that his exclusion of the

audit file was because it was unduly prejudicial and would confuse

the jury.   He reasoned that he did not "know why the jury rendered

the verdict that it did" but that "there was certainly enough"

evidence for the jury to make its determination.

     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 miscarriage of justice under

the law."     "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

                                   21                             A-3815-15T3
denial of justice.'"    Risko v. Thompson Muller Auto. Grp., Inc.,

206 N.J. 506, 521 (2011) (quoting Baxter v. Fairmont Food Co., 74

N.J. 588, 597-98 (1977)); Boryszewski v. Burke, 380 N.J. Super.

361, 391 (App. Div. 2005) ("Jury verdicts should be set aside in

favor of new trials only with great reluctance, and only in cases

of clear injustice."    (citing Crego v. Carp, 295 N.J. Super. 565,

577 (App. Div. 1996))).    Furthermore, on a motion for a new trial,

and on appeal from same, "all reasonable inferences must be drawn

in favor of upholding the" jury's decision, and all evidence

supporting that decision must be accepted as true.     Boryszewski,

380 N.J. Super. at 391 (citing Harper-Lawrence, Inc. v. United

Merchs. & Mfrs., Inc., 261 N.J. Super. 554, 559 (App. Div. 1993)).

     In reviewing a trial court's decision on a motion for a new

trial, we "afford 'due deference' to the trial court's 'feel of

the case,' with regard to the assessment of intangibles, such as

witness credibility."     Jastram v. Kruse, 197 N.J. 216, 230 (2008)

(quoting Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984)).        We

will, however, reverse a trial judge's denial of a motion for new

trial where "it clearly appears that there was a miscarriage of

justice under the law."     R. 2:10-1.

     Guided by these principles, we cannot conclude that here

plaintiff received a fair trial in light of the judge's mistaken

exclusion of the audit file, which would have established an

                                  22                         A-3815-15T3
element of plaintiff's CEPA claim.   We are therefore constrained

to reverse the denial of plaintiff's motion for a new trial, vacate

the judgment dismissing plaintiff's complaint and remand for a new

trial.

     Reversed in part, vacated in part and remanded for a new

trial.   We do not retain jurisdiction.




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