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The Appellate Division in New Jersey has pulled the plug on former anchorwoman Sara Lee Kessler’s $7 million wrongful discharge verdict against WWOR-TV in New Jersey, finding trial court errors in admitting evidence and in charging the jury. In the per curiam decision, Judges John Keefe, Naomi Eichen and Isaiah Steinberg ordered a new trial on Kessler’s claims of handicap discrimination and retaliation. They also gave some practical guidance on how to determine which damages in an employment discrimination case are covered by a workers’ compensation insurer. Kessler v. WWOR-TV, A-7048-98T3. A Bergen County jury in New Jersey had found for Kessler, an 18-year veteran of the station who was let go in 1994, on claims that management did not accommodate her temporary disability from a broken tailbone. The jury also found that she was fired in punishment for various forms of “protected activity,” such as filing a complaint with the Equal Opportunity Employment Commission and advising a co-worker to bring a grievance. The jury awarded $2.5 million in economic damages, $2 million for emotional distress and pain and suffering and $2.5 million in punitive damages. But the Appellate Division panel found that superior court Judge Isabel Stark confused jurors by combining four questions submitted by counsel — asking whether Kessler was subjected to age, gender, religion and handicap discrimination — into one question. The panel found Stark also erred in allowing the plaintiff to read into evidence the deposition testimony of Carolyn Fields, an EEOC agent who processed Kessler’s complaint, without the witness appearing in court for cross-examination. Fields’ deposition was “confusing and ambiguous with respect to the issue for which it was read,” namely, the timing of Kessler’s notice of claim, the appeals court said. At various points, the deposition said the notice was mailed to WWOR on March 14 or March 17 — a critical discrepancy because Kessler was fired on March 18. Fields was excused because her brother died a few days before she was to come to court, but the Appellate Division found that she could have been called at some point during the three-week trial. “Cross-examination on this issue would have been critical. Using Fields’ deposition deprived defendants of that opportunity,” the panel said. Kessler’s attorney, Neil Mullin of Montclair, New Jersey’s Smith Mullin, says he will petition for certification to the state supreme court based on the appeals court’s “unprecedented” position that the trial court should have forced the EEOC agent to testify. “Her brother had just died. I don’t think it’s appropriate for a state court judge to threaten a federal employee,” says Mullin. Mullin says notwithstanding the “minor errors” by the trial court, “there was overwhelming evidence to support the verdict anyway.” Rosemary Alito, who handled the appeal for WWOR along with fellow partner Anthony Bartell at Newark, New Jersey’s McCarter & English, says her client is pleased with the ruling but she declines to comment further, citing the plaintiff’s expected petition for certification. The appeals court also found fault with the use of special interrogatories to determine Kessler’s damages for physical manifestations of job-related emotional trauma, which an employer’s workers’ compensation carrier must cover under the doctrine of Schmidt v. Smith, 155 N.J. 44 (1998). The panel said there was too little evidence on damage apportionment and left open the carrier’s option to try the issue on remand. However, the carrier, Home Insurance Co. of New York, has filed an action in New York seeking to clarify its liability in the case, and WWOR has filed a similar action in New Jersey, says Bartell. Elizabeth Zuckerman, of Zuckerman & Fisher in Lawrenceville, New Jersey, who represented the plaintiff in Schmidt v. Smith, says the Kessler ruling shows that attempting to separate physical and emotional manifestations of trauma is a complex matter that juries can’t resolve lightly or without expert witnesses. Francis Garrity, who represented the defendant in Schmidt, says that Kessler brings the law “one step forward” in how to apply the doctrine. “I agree with the Appellate Division that special interrogatories should not be submitted to the jury,” says Garrity, of Montclair’s Garrity, Graham, Favetta & Flinn. “I believe that whether there is coverage for a jury verdict should be determined in a separate action.” Home Insurance’s lawyer, James Melhuish, a partner at Morgan, Melhuish, Monaghan, Arvidson, Arbrutyn & Lisowski in Livingston, New Jersey, did not return calls requesting comment.

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