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An employment bias trial that lasted almost six months — the longest such case that N.J. lawyers can recall — has the plaintiff’s attorney wondering whether the events of Sept. 11 helped stack the deck against his Iranian-born client. “I always had a problem with this case because my client was from Iran,” says Andrew Dwyer, a Newark, N.J., solo practitioner. Then, “in the middle of the trial we had the most horrific attack on American soil in history.” Trial began on May 22 and had been running since then. Reminders of Sept. 11 were frequent throughout the last two months. One juror was a paramedic who went to Ground Zero, delaying the trial for several days. On top of that were two bomb scares and weeks of the anthrax crisis, whose epicenter was Mercer County, N.J., where the trial was held. “Everybody in that courthouse was conscious of the Sept. 11 thing,” Dwyer says. “If it had been earlier on in the trial, I might have said maybe we should start again in six months when people have had time to cool off.” But four months had passed and a retrial would have been expensive and, says Dwyer, “we would be going into a trial where the defendants had a transcript of plaintiff’s whole direct testimony.” So Dwyer pressed forward and on Nov. 8, the jury no-caused Dwyer’s client, Setareh Marvasti, on all her claims. At issue in Marvasti v. Johnson & Johnson Worldwide Absorbent Products and Materials Research Corp., MER-L-2020-96, was whether Johnson & Johnson unlawfully discriminated by denying Marvasti a promotion from principal scientist to research fellow and by terminating her in May 1995. Marvasti, now 49, of Princeton, N.J., alleged she would have been one of only a handful of female research fellows in the J&J family of companies and the first in the company for which she worked and in the eight companies in the consumer products sector. She also alleged that the discharge was in retaliation for her complaints about the failure to promote, and she asserted a claim for breach of implied contract. Marvasti’s Iranian ethnicity was at issue based on her allegations that she was terminated because of national origin, color, gender and age. After Sept. 11, Superior Court Judge Paulette Sapp-Peterson queried the jury about whether the attacks would affect their ability to be fair and later instructed them to disregard the attacks in their deliberations. Dwyer questions the efficacy of that measure. “I don’t know if people who are bigoted are going to admit it.” Dwyer says he had concerns about the jury as early as June. When a female juror complained to others that she felt uncomfortable because she thought Marvasti was staring at her, a male juror retorted to the effect that she should just look right back at Marvasti and ask her, “Why are you staring at me, you b—h?” Dwyer says three or four jurors supported that account when questioned individually by Sapp-Peterson, but the female juror at first denied the incident. There was some discussion of striking that juror, but he did not press the issue, he says. Dwyer says he was in a quandary. “If I knock her off, they will all know she was knocked off by the b—h from Iran because of a joke,” he says. His alternative was “rolling the dice and hoping the jurors will approach the case in a fair and unbiased manner.” J&J’s lawyer, Francis Dee, says the judge questioned individual jurors in chambers in a few instances, with counsel present, and told them it was confidential. It still is, he says. “I don’t agree with Andrew Dwyer, but it is inappropriate to discuss what occurred,” says Dee, a partner with Newark’s Carpenter, Bennett & Morrissey, who was assisted by partner Jane Rigby and associate Gary Prish. Dwyer says that although a gag order was in place during the trial, the judge read in open court a juror note about the remarks and placed no post-trial restraints on anyone. Dwyer acknowledges that juror fatigue could also have been a factor in the eventual outcome. Why the case took so long is a matter of opinion. Dwyer attributes the length of the case to its complexity and numerous interruptions, including a two-week break in August for vacation and the brief hiatus after the Sept. 11 attacks. Dwyer says he had expected the trial would take two to three months. Instead, it took four months to put on his case. Marvasti’s testimony alone took more than a month and went to repeated cross-examination by Dee, who also put on much of his defense through expansive cross-examination of the many adverse witnesses called by Marvasti. Dwyer says Dee made four motions for a mistrial and repeated objections, but Dee says he recalls only two requests for a mistrial, in response to local press coverage of the trial and to what he calls improper cross-examination by Dwyer about other suits against a witness employed by J&J, which resulted in a curative instruction from Sapp-Peterson. “It’s very dangerous to subject a jury to an overlong trial,” says Neil Mullin, of Smith Mullin in Montclair, N.J., a plaintiffs’ lawyer who calls Marvasti’s case the longest employment trial ever in New Jersey. “They will figure out who put them through it, who’s to blame for it and will punish that party.” Dwyer says that the jury’s 8-0 finding that Marvasti was not qualified for the denied promotion is a giveaway that they did not follow the evidence, which he says was so overwhelming that Sapp-Peterson suggested that Dee stipulate to it. Dee says he does not recall the judge asking him to stipulate, but “if that had happened, the answer would have been ‘no.’ “ Dwyer says that several times when he was putting in evidence about Marvasti’s qualifications with respect to the termination claim, Sapp-Peterson called for a sidebar to ask why, saying the qualifications were not in question. Dee cites Marvasti’s lack of patents and alleged improper keeping of her lab notebook as indications she was not qualified. In Dwyer’s view, the adverse decision on such a clear-cut issue “means the jury was not following the evidence. This exacerbated the other concerns we had about these jurors.” “You can have a situation where jurors don’t like your client and don’t do what you want them to do. That’s life,” says Dwyer. But “this is not just something I wish they hadn’t done. It’s absolutely insane. If they’ve done that, that’s got to raise a flag for you about the whole case.” If he decides to appeal, “it’s better this way because it shows there was something wrong with the jury,” he says.

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