Alan Schorr’s Employment Case of The Week ending March 15, 2013

Davis v. Husain, 2013 WL 949496 (App. Div. March 13, 2013) (Unpublished)

This week’s Case of the Week, Davis v. Husain arises out of a trial verdict in Camden County Superior Court. The opinion is a three-judge opinion, which contains a stinging dissent, and yet the opinion is unpublished. Rare for such a case containing cross-appeals and a dissent.

Tomikia Davis worked for two physicians. She worked as a medical assistant for Mira Kheny, M.D. At the same time, she also worked sporadically for Kheny’s landlord, Abez Husain, M.D. Davis alleged that Husain repeatedly sexually harassed her, and that she was terminated from both of her positions after she complained. Eventually Kheny settled with the Plaintiff. But the case against Husain went to trial in August 11, 2011. After a six day trial, the jury returned a verdict against Husain for $12,500. There were numerous post-trial motions, with the end result being that the Court refused to remit the verdict or to order a new trial. The Court awarded attorney’s fees but denied the motion by Plaintiff’s counsel for a contingency enhancement on the attorney’s fee. Both parties cross-appealed.

There are a lot of interesting issues in this opinion, but I will focus on the two most interesting. First, after the trial, the Judge held an ex-parte interview with the jurors, during which a juror commented that Husain had not touched the Bible when he took the oath before testifying. The judge informed the attorneys about the juror’s comment in an off-the-record conversation in chambers. Although Husain made numerous post-trial motions, he mentioned the Bible comment but did not request a new trial on that basis. The second interesting part of this opinion relates to the cross-appeal on the issue of contingent fee enhancement.

The issue involving the post-jury interview is notable for the intense reaction by the Appellate Division, including a scathing dissent. Husain, who is of Indian descent, explained in a post-trial Certification that he did not touch Bible because (1) his cultural upbringing was that the left hand should not be placed on holy books (so you can only hold a holy book with your right hand?); and (2) because the courtroom had a Bible and a Koran, he was confused and not sure which was being offered to him. Defendant’s counsel made mention of the juror’s comment in his remittitur brief, which caused the Judge to admonish him that the judge was “surprised that comment that I made out of my continuing concern for education winds up in a brief in a certification.”

The Appellate panel was clearly angered by the judge’s actions. The majority cited its “strong disapproval of judges who speak to jurors in cases that have tried to conclusion,” and cited where the Appellate Division has observed that there is “no principled reason for permitting ex-parte communications concerning the jury’s deliberation once a verdict has been rendered and the jury discharged.” The majority also admonished the trial judge for making the attorney feel like he had breached a confidence imparted by the judge. Nevertheless, the majority did not feel that the comment warranted a new trial in part because the Court found that the comment was not “on its face discriminatory or indicative of invidious discriminatory.” That raised my eyebrows. Considering that a juror saw fit to mention to the judge that an Indian named Husain had failed to touch the Bible, it seems to me that at least some further inquiry would have been warranted.

The dissent felt more strongly about the judge’s actions. In agreeing with the majority’s condemnation of the judge’s actions, the dissent went further, citing Judicial Canons. The dissenting judge felt that the inappropriate behavior of the judge merited a re-trial. The judge opined that “reversal may also better deter trial judges who continue to engage in this inappropriate practice.” Frankly, I do not see how punishing a plaintiff is going to deter other judges. If the panel’s unanimous condemnation will not deter judges, why would a reversal change their behavior? It is unknown at this time whether Dr. Husain is planning to appeal because defendant’s attorney has not returned my call. Considering that the verdict was only $12,500, I would think that a new trial would be pretty risky.

The other really interesting part of this opinion is the Appellate Division’s reversal of the trial judge’s ruling denying a contingency enhancement to plaintiff’s counsel. The trial judge had cut the attorney’s fees substantially, but still awarded $68,095 on the jury verdict of $12,500. This amount was upheld by the Appellate Division. Apparently the trial judge thought that the fees were already disproportionate, and he completely disallowed any contingency enhancement. The Appellate Division reiterated that “the mechanisms for awarding fees, including contingency enhancements, that we adopted in Rendine [v. Pantzer, 141 N.J. 292 (1995)] shall remain in full force and effect as the governing principles for attorney’s fee awards made pursuant to fee-shifting provisions in our statutes and rules.” Walker v. Giuffre, 209 N.J. 124, 129 (2012). The Appellate Division reversed and remanded the contingency enhancement for further consideration in accordance with the decision.

This is a good case to read and hold on to. There are numerous other interesting issues that are worth the review.

Plaintiff Respondent/Cross-Appellant’s counsel: Deborah L. Mains, Costello & Mains, P.C.

Defendant Appellant/Cross-Respondent’s counsel: Mark J. Molz.

Trial Judge: Stephen M. Holden, J.S.C.

Appellate Court Judges: Fisher, Alvarez and Waugh; dissent on the issue of new trial by Fisher.