NUWAVE INVESTMENT CORPORATION VS. HYMAN BECK & COMPANY, INC. (L-0411-06, MORRIS COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-2255-16T3
NUWAVE INVESTMENT
CORPORATION, TROY W.
BUCKNER and JOHN S. RYAN,
Plaintiffs-Respondents,
v.
HYMAN BECK & COMPANY,
INC., ALEXANDER HYMAN,
and RICHARD A. DEFALCO,
Defendants,
and
FIRST ADVANTAGE LITIGATION
CONSULTING, LLC (f/k/a
BACKTRACK REPORTS, INC.),
Defendant-Appellant.
________________________________
Argued October 15, 2018 – Decided August 1, 2019
Before Judges Messano, Fasciale and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Docket No. L-0411-06.
Kim M. Watterson (Reed Smith LLP) of the
Pennsylvania bar, admitted pro hac vice, argued the
cause for appellant (Reed Smith LLP, and Kim M.
Watterson, attorneys; Mark S. Melodia, Siobhan Anne
Nolan, Kim M. Watterson, and James C. Martin (Reed
Smith LLP) of Pennsylvania and California bars,
admitted pro hac vice, on the briefs).
Thomas J. Smith (K&L Gates) of the Pennsylvania bar,
admitted pro hac vice, argued the cause for respondents
(John F. Olsen and Thomas J. Smith, attorneys; John F.
Olsen, Thomas J. Smith, Brian J. Kluckman (K&L
Gates) of the Pennsylvania bar, admitted pro hac vice,
and Sarah A. Bronder (K&L Gates) of the Pennsylvania
bar, admitted pro hac vice, on the brief).
PER CURIAM
This matter is before us a second time. The first trial resulted in a jury
verdict in favor of plaintiffs Troy W. Buckner and John S. Ryan, principals of
plaintiff NuWave Investment Corporation (NuWave, and collectively,
plaintiffs), on their defamation claim against defendant, BackTrack Reports, Inc.
(BackTrack or defendant). NuWave Inv. Corp. v. Hyman Beck & Co., 432 N.J.
Super. 539, 547-48 (App. Div. 2013), aff'd o.b., 221 N.J. 495, 498 (2015). The
jury awarded presumed damages of $1 million to NuWave, $150,000 to Buckner
and $50,000 to Ryan. Id. at 548. The jury found neither Buckner nor Ryan
suffered actual damages, but it awarded NuWave $1.406 million in actual
damages. Ibid. It also awarded plaintiffs $250,000 in punitive damages. Ibid.
A-2255-16T3
2
On appeal, concluding the jury instructions erroneously permitted an
award of both actual and presumed damages, we vacated the awards of presumed
damages. Id. at 558. In addition, "[b]ecause we [could not] ascertain with
confidence whether, if properly instructed on the law . . . the jury would have
reached a different result in its award of 'actual damages,'" we vacated the entire
judgment and remanded the matter for a new trial on damages. Id. at 559.
Following the second trial, the jury again found for plaintiffs and awarded
$2.057 million in actual special damages to NuWave, $12.3 million in actual
general damages to NuWave, $18.5 million in actual general damages to
Buckner, and $6.75 million in actual general damages to Ryan. The jury
awarded plaintiffs $800,000 in punitive damages.
The judge denied defendant's motion for judgment notwithstanding the
verdict (JNOV), or, alternatively, a new trial or remittitur. The same day, he
granted defendant's motion to mold the verdict by applying the comparative
liability found by the jury at the first trial — 37% as to BackTrack and 63% as
to co-defendants Hyman Beck & Co. — and entered judgment together with pre-
judgment interest. 1 This appeal followed.
1
At the original trial, plaintiffs' defamation claim against Hyman Beck & Co.,
and its employees, Alexander Hyman and Richard A. DeFalco (collectively,
A-2255-16T3
3
I.
We need not recount in detail the facts supporting plaintiffs' liability
verdict because we adequately explained them in our prior opinion. See id. at
547-51. We refer to the testimony at the damages only second trial as necessary
to address the legal issues now raised.
Simon Peter Fentham-Fletcher, who did not testify at the first trial, was
the head of operational due diligence at New Finance, a London-based asset
management firm, from 2003 to 2007. The principals of New Finance first
learned about NuWave from a broker, Sep Alavi, and thereafter initiated a
preliminary in-person investigation at NuWave's office. New Finance was "very
keen" on investing with NuWave prior to Fentham-Fletcher's trip in summer
2005 to conduct further operational due diligence.
Fentham-Fletcher met with Buckner and formed a positive evaluation of
NuWave's operation. New Finance placed an item on its mid-October 2005
meeting agenda to approve an investment in a NuWave fund. As a final
Hyman Beck), was dismissed as untimely under the one-year statute of
limitations applicable to defamation actions. NuWave, 432 N.J. Super. at 548.
As we noted in our prior opinion, plaintiffs did not object to including Hyman
Beck on the verdict sheet at the first trial and did not raise the issue in the first
appeal. Ibid. n.2.
A-2255-16T3
4
measure, since it was their first time doing business together, Fentham-Fletcher
hired defendant to perform a confidential background check on Buckner and
Ryan.
The report that Fentham-Fletcher received at the end of September from
BackTrack was the worst he had ever seen. It questioned the integrity of
Buckner and Ryan. Fentham-Fletcher began to second-guess himself, and
opinions inside New Finance that had been building in favor of the investment
took a 180-degree turn for the worse. Fletcher went to the October meeting and
vetoed the investment. Although Fentham-Fletcher would not have pursued it
any further, the principals of New Finance insisted he call Buckner and ask for
an explanation.
Fentham-Fletcher disclosed the existence of the BackTrack report to
Buckner but refused to provide a copy. He told Buckner the investment was
cancelled pending further investigation and asked Buckner for some positive
references. Ultimately, Fentham-Fletcher and his principals decided the report
was worthless, and New Finance invested with NuWave in May 2006. However,
A-2255-16T3
5
out of an abundance of caution, the investment of $4 million dollars was
significantly less than the $10 million originally planned. 2
On cross-examination, Fentham-Fletcher could not recall which parts of
the 2005 report in particular caused him concern. However, he testified the
entire report read like "pure venom," with "every paragraph" raising a "red
flag[,]" and he had no way of knowing what was true and what was false.
Buckner testified about his background, NuWave's creation, and the fees
it charged to manage and invest clients' money. After Fentham-Fletcher's call
in 2005, Buckner contacted BackTrack's president, Randy Shain, and its counsel
to get a copy of the report and asked for a retraction. They refused. Plaintiffs
filed a complaint in this litigation in February 2006, resulting in BackTrack not
issuing any further NuWave reports.3
Buckner described this time as "a crushing blow" and claimed he suffered
emotionally from the consequences. He calculated the loss of fees because of
New Finance's decision to delay and reduce its investment was $1.869 million.
2
Fentham-Fletcher explained that New Finance would invest fifty percent of
the amount with its own funds and "leverage" the other half through margin
loans.
3
BackTrack issued reports about NuWave that essentially contained the
defamatory statements to four clients, the last in January 2006. NuWave, 432
N.J. Super. at 551.
A-2255-16T3
6
Buckner also testified that NuWave hired an accountant and a public relations
firm to conduct an audit and burnish the firm's name and reputation.
Buckner told of conversations he had with specific individuals, which
made clear they had seen the report and were not simply aware of its existence
because of this litigation. Several contacts refused to conduct business with
NuWave, and some asked Buckner to refute specific issues raised in the
BackTrack reports. 4 He explained how one person, Thomas Ducrot, who
worked at FINALTIS, admitted taking the BackTrack report with him when he
left that firm to join another. In sum, Buckner claimed his reputation in the
investment community was damaged.
Nevertheless, Buckner acknowledged the financial success of NuWave,
which had its best year in 2008 and, by late 2011, had almost $1 billion in assets
under management. Buckner said the company made $95 million dollars in
profits since its inception in 2000, but claimed the firm was dying because many
investors had pulled out of its funds, and NuWave had not added a new client
for several years. Buckner also acknowledged at least two clients invested with
4
In November or December 2005, Buckner anonymously received a BackTrack
report prepared for FINALTIS in 2004. See NuWave, 432 N.J. Super. at 551.
This litigation resulted in production of the other BackTrack reports.
A-2255-16T3
7
the company even though they had received a report from defendant that
included the defamatory statements, and none of the clients who left told him it
was because of BackTrack's reports.
Ryan testified in a similar vein about the effect of Fentham-Fletcher's
disclosure of the report's existence, and the ease by which the defamatory
comments would spread by word-of-mouth or email. Ryan could not identify
clients lost due to the BackTrack reports, but maintained NuWave was harmed
and never grew as big as expected. Ryan started his own firm in 2014, but said
people continued to approach him at conferences and discuss the BackTrack
reports.
Plaintiffs introduced deposition testimony from nine witnesses. We
summarize some of those readings. Alavi testified that he would not have
introduced NuWave to the New Finance principals in 2005 had he known about
the BackTrack report, and that he was aware of New Finance's hesitation and
more conservative investment as a result of the report. Two BackTrack
employees testified that the company occasionally distributed older reports to
demonstrate its work product, and the reports on NuWave were still in the
company's archives. Ducrot confirmed that he took an electronic copy of the
report prepared for FINALTIS when he left the firm, and that he spoke about
A-2255-16T3
8
NuWave with others at his new firms. One of those individuals, Brian Walls,
acknowledged that he sent an email to a colleague naming NuWave as one of
several fraudulent firms in the hedge fund business. Walls, however, claimed
he actually had no specific knowledge to back up the email, which he said was
simply a snide comment.
Defendant called its general manager Casey Drucker as a witness. She
testified that BackTrack had not released any of the reports at issue in the case
since 2006, and that all the reports it prepared were confidential, prepared for a
specific client and not otherwise available publicly or on the internet. Some of
the defamatory statements were online, however, because they were contained
in court filings in the litigation.
Amy Hirsch testified as the defense expert in the field of alternative
investments, including hedge funds, and had been responsible for conducting
due diligence investigations for institutional investors such as banks,
foundations and endowments. She opined that there were several reasons, other
than the BackTrack reports, for NuWave's lack of continued growth, including
historical or pending litigation, lack of a strong marketing team and the firm's
more recent poor performance. She was of the opinion that a firm's reputation
was of varying importance depending on the client.
A-2255-16T3
9
Defendant also read portions of depositions during its case. Ostensibly,
these demonstrated certain clients invested in NuWave and were unaware of the
BackTrack reports or any negative information about plaintiffs. Some said they
first became aware of the reports from Buckner himself.
II.
There are three potential categories of damages in defamation cases —
actual, nominal and punitive. NuWave, 221 N.J. at 499 (citing W.J.A. v. D.A.,
210 N.J. 229, 239 (2012)). 5 Only actual damages are relevant to the issues raised
on appeal.
We sometimes refer to actual damages as compensatory damages "because
they are intended to compensate the plaintiff for the wrong done by the
defamatory speech." Ibid. (citing W.J.A., 210 N.J. at 239). We divide actual
damages into two subcategories.
5
"'[N]ominal' damages, which include those that may be presumed . . . , 'serve[]
the purpose of vindicating' the character of 'a plaintiff who has not proved a
compensable loss.'" NuWave, 221 N.J. at 499 (second alteration in original)
(quoting W.J.A., 210 N.J. at 240-41). "As a result, presumed damages are not
to be awarded as compensation and are not appropriate when compensatory
damages are otherwise available to the plaintiff." Id. at 500. Only an award of
compensatory damages may support an award of punitive damages. N.J.S.A.
2A:15-5.13(c); see also In re Estate of Stockdale, 196 N.J. 275, 304 (2008)
(holding there can be no basis for a punitive damage claim in the absence of a
request for, or the availability of, compensatory damages).
A-2255-16T3
10
Actual damages deemed "special" compensate a
plaintiff for specific economic or pecuniary loss.
Actual damages deemed "general" address harm that is
not capable of precise monetary calculation. . . .
[A]ctual damages can include harm caused by
"'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." All compensatory damages,
whether considered special or general, depend on
showings of actual harm, demonstrated through
competent evidence, and may not include a damage
award presumed by the jury.
[Ibid. (citations omitted) (quoting W.J.A., 210 N.J. at
239).]
In either circumstance, "[t]o receive a compensatory award for reputational loss,
a plaintiff will be required to prove actual harm, pecuniary or otherwise, to his
reputation through the production of evidence." W.J.A., 210 N.J. at 249.
However, evidence of injury to reputation is "elusive" in nature,
"inherently amorphous," and often "defies exact measurement." Sisler v.
Gannett Co., 104 N.J. 256, 281 (1986). Therefore,
a plaintiff should offer some concrete proof that his
reputation has been injured. One form of proof is that
an existing relationship has been seriously disrupted,
reflecting the idea that a reputation may be valued in
terms of relationships with others. Testimony of third
parties as to a diminished reputation will also suffice to
prove "actual injury." Awards based on a plaintiff's
testimony alone or on "inferred" damages are
unacceptable.
A-2255-16T3
11
[Ibid. (citation omitted).]
Before us, defendant argues that the judge should have entered judgment
in its favor as to actual special damages, because NuWave produced "no
competent evidence supporting that award." Defendant also contends that
plaintiffs failed to prove they suffered reputational injury caused by defendant's
defamatory statements, and therefore the judge should have entered judgment in
BackTrack's favor as to actual general damages. Lastly and alternatively,
defendant contends prejudicial evidentiary rulings and errors in the jury charge
compel reversal and a new trial. 6
III.
In considering the denial of a motion for JNOV made pursuant to Rule
4:40-2(b), we apply the same standard as the trial court. See Estate of Roach v.
TRW, Inc., 164 N.J. 598, 612 (2000). "[W]e 'must accept as true all evidence
supporting the position of the party defending against the motion and must
accord that party the benefit of all legitimate inferences which can be deduced
[from the evidence].'" Besler v. Bd. of Educ. of W. Windsor-Plainsboro Reg'l
6
Although defendant's post-judgment motions requested remittitur as
alternative relief, it raises no argument on appeal that the failure to grant
remittitur was reversible error. Any issue not briefed is waived. Drinker Biddle
& Reath, LLP v. N.J. Dep't of Law & Pub. Safety, 421 N.J. Super. 489, 496 n.5
(App. Div. 2011).
A-2255-16T3
12
Sch. Dist., 201 N.J. 544, 572 (2010) (second alteration in original) (quoting
Lewis v. Am. Cyanamid Co., 155 N.J. 544, 567 (1998)). "This approach
respects the jury's singular role in resolving 'disputed factual matters.'" Ibid.
(quoting Lewis, 155 N.J. at 567). "[T]he judicial function here is quite a
mechanical one." Dolson v. Anastasia, 55 N.J. 2, 5 (1969).
A.
In denying defendant's motions regarding the award of $2.057 million in
actual special damages to NuWave, the judge cited the testimony of Buckner,
Fentham-Fletcher and Alavi, which proved NuWave's lost profits occasioned by
New Finance's delayed, more conservative investment. Fentham-Fletcher
testified that the investment was scheduled to occur in November 2005, but that
he vetoed the investment based upon the BackTrack report, which contained
numerous defamatory statements. The judge noted the costs NuWave incurred
in hiring a public relations firm to "rehabilitate" its image, and the $6000 it paid
for an audit to submit to a prospective investor, 6800 Capital Corp. 7 The judge
7
Plaintiffs read portions of the deposition of Robert Keck of 6800 Capital Corp.
Citing the litigation, BackTrack refused to furnish a report on NuWave when
Keck's company requested it in 2006. Keck reviewed a copy of plaintiffs'
complaint, which included the defamatory statements, and became concerned.
He eventually invested with NuWave after speaking with Buckner and receiving
financial statements regarding NuWave's longest running account. Keck did not
reference specifically the audit.
A-2255-16T3
13
observed that these totaled $2.057 million, the exact amount unanimously
awarded by the jury.
Defendant's challenge to the jury's verdict regarding NuWave's actual
special damages lacks sufficient merit to warrant extensive discussion. R. 2:11-
3(e)(1)(E). Contrary to defendant's claim, Fentham-Fletcher did not base his
decision to delay any investment with NuWave on non-defamatory portions of
the report; Fentham-Fletcher testified that the entirety of the report was the worst
he had ever seen, and every paragraph raised a "red flag." Defendant asserts
NuWave failed to prove the exact amount of money New Financial was prepared
to invest, and, in turn, the losses NuWave suffered as a result of the delayed and
more cautious investment New Financial actually made. But, there was
sufficient evidence for the jury to accept Buckner's calculation, and defendant 's
challenge to Buckner's use of charts prepared by a subordinate who never
testified at trial lacks any merit.
We also reject defendant's argument that NuWave failed to prove that its
other compensatory damages, i.e., the costs associated with hiring a public
relations firm and an accountant, were proximately caused by the defamatory
report. Although not hired until several years after BackTrack's report was
issued, Buckner testified that he continued to face questions about the
A-2255-16T3
14
defamatory statements and hired the public relations firm to defend NuWave's
reputation. Although Keck never read a BackTrack report, the costs of preparing
the audit resulted from concerns Keck and his assistant raised about NuWave.
In deciding a motion for JNOV, a "court is not concerned with the worth,
nature or extent (beyond a scintilla) of the evidence, but only with its existence,
viewed most favorably to the party opposing the motion." Dolson, 55 N.J. at 5-
6. We affirm the denial of defendant's JNOV motion as to the jury's award of
actual special damages to NuWave.
B.
Defendant's challenges to the awards of actual general damages to
NuWave, Buckner and Ryan are more extensive. In denying defendant's motion,
the judge concluded there was sufficient evidence to prove reputational harm,
citing Fentham-Fletcher's "extremely credible" testimony, Alavi's deposition,
Keck's deposition, and Walls's email naming NuWave as one of a group of
fraudulent fund managers. The judge cited Buckner's testimony regarding
specific comments made by other investors who had not actually seen the
reports. The judge also referenced the extensive testimony regarding the
importance of reputation within the industry.
A-2255-16T3
15
Defendant contends that plaintiffs failed to produce any competent
evidence of reputational injury caused by the defamatory reports themselves, as
opposed to plaintiffs' self-publication of the reports. Despite anything contained
in the reports, investors nevertheless invested with NuWave, and plaintiffs failed
to prove a "permanent[] impair[ment]" of their relationships, as required by
Sisler, 104 N.J. at 281. Defendant also argues that plaintiffs failed to prove
reputational injury caused by someone actually reading one of the defamatory
reports, as opposed to "just having heard about it or something like it."
Defendant claims Buckner's testimony, particularly his claim of emotional
distress, was insufficient, and plaintiffs were required to present "third-party
testimony or other objective evidence" of reputational injury.
Defendant relies extensively on Sisler in attacking the nature and
sufficiency of plaintiffs' proofs. There, the plaintiff, a former president and
chairperson of a bank, sued a newspaper for publishing defamatory articles
alleging unsavory connections with the bank. Id. at 259-61. At the time, the
plaintiff, who had retired and owned and operated a horse breeding farm, was
negotiating with another to have several horses stand stud at the plaintiff's farm.
Id. at 260. The horse syndicator terminated negotiations after reading the
articles. Id. at 261. The plaintiff sought "general damages for loss of reputation
A-2255-16T3
16
and mental anguish, special damages arising out of the lost stud fees from the
horses, and punitive damages." Ibid. The jury returned a verdict in the plaintiff's
favor, awarding both general and special damages. Ibid. The Court reversed on
other grounds, holding that the plaintiff's public status required proof of the
newspaper's actual malice in publishing the articles. Id. at 279.
The Court then addressed the issue of damages in the event of a retrial.
Ibid. It rejected the defendant's claim that the "plaintiff adduced no competent
evidence at trial of 'actual injury' to his reputation." Id. at 280. Although the
plaintiff called six witnesses regarding his excellent reputation, none of whom
could say the article negatively affected their impression of the plaintiff, ibid.
n.6, proof that the plaintiff's "existing relationship ha[d] been seriously
disrupted" was sufficient. Id. at 281. However, the Court cautioned, "[a]wards
based on a plaintiff's testimony alone or on 'inferred' damages are
unacceptable[,]" and "[c]ourts reviewing jury awards based on lesser evidential
showings should be more scrupulous, and less hesitant about reducing the
verdicts to conform with the evidence." Ibid.; see also Ward v. Zelikovsky, 136
N.J. 516, 540 (1994) ("[P]roof that an existing relationship has been seriously
disrupted or testimony of third parties detailing a diminished reputation will be
necessary to satisfy the requirement that special damages exist . . . .").
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Defendant argues, for example, that because Fentham-Fletcher ultimately
supported an investment with NuWave, there was no permanent impairment of
the relationship. However, Sisler only requires a serious disruption of the
relationship, which "reflect[s] the idea that a reputation may be valued in terms
of relationships with others." 104 N.J. at 281; cf. Biondi v. Nassimos, 300 N.J.
Super. 148, 154 (App. Div. 1997) (quoting Sisler, 104 N.J. at 281) (noting the
plaintiff's failure to "present evidence that anyone had refused to associate with
him or that any of his business or personal relationships had been 'seriously
disrupted'"). Moreover, as the Court noted, a jury may "conclude from this
evidence that plaintiff[s] suffered general injury to [their] reputation[s]," so as
"to justify an award for special damages." Sisler, 104 N.J. at 281 (emphasis
added).
Defendant argues that the deposition testimony of Alavi, Keck and Walls
failed to prove reputational injury caused by publication of a defamatory
BackTrack report. However, the testimony was clearly relevant to demonstrate
concerns in the industry occasioned by the report. Contrary to defendant's
cherry-picking of the evidence, Alavi was fully aware of the report and that it
contained negative information about plaintiffs. He knew the investment by
New Funding was delayed as a result.
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Keck never saw the report. However, he became suspicious of its
allegations after defendant refused to furnish a copy because of ongoing
litigation with plaintiffs. Keck had used BackTrack's reports in the past. He
initially refused to move forward with any investment after reading a copy of
plaintiffs' complaint, which contained the defamatory statements, until NuWave
assuaged his concerns with additional performance data. Lastly, based upon the
deposition testimony of Ducrot, who took a defamatory report with him from
firm to firm, and Walls, who refused to consider inviting Buckner to a
prestigious conference of managers in Italy and said NuWave engaged in
fraudulent practices, the jury could infer plaintiffs' reputations had indeed been
damaged by the report.
Defendant also argues Buckner's "hearsay testimony" about conversations
with contacts in the industry failed to support a claim for actual general damages
because there was no evidence any of these people had actually read a
BackTrack report on NuWave. It also argues that plaintiffs failed to prove
BackTrack's report was a proximate cause of damage to their reputations, as
opposed to plaintiffs' self-publication of the defamatory material. Defendant's
summation focused the jury's attention to both claims as it related to causation.
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19
However, the original publisher of defamatory content is responsible for
the effects of the foreseeable repetition and spread of the defamation, even to
parties who are unaware of the original source of the injurious statements.
Herrmann v. Newark Morning Ledger Co., 48 N.J. Super. 420, 446-47 (App.
Div. 1958); King v. Patterson, 49 N.J.L. 417, 432 (E. & A. 1887); see also Model
Jury Charges (Civil), 8.46, "Defamation Damages (Private or Public)" (approved
June 2014) (a plaintiff is "entitled to compensatory damages for all the
detrimental effects of a defamatory statement relating to [plaintiff's] reputation
which were reasonably to be foreseen and which are the direct and natural result
of the defamatory statement") (alteration in original).
Despite Drucker's testimony regarding the confidential nature of the
reports, the jury was entitled to credit evidence, both direct and circumstantial,
that the key defamatory allegations in BackTrack's report were circulated within
the ranks of investment managers and affected NuWave's reputation and that of
its principals.
In Herrmann, we held that in a defamation case, "testimony by witnesses
as to what effect the article had on their estimation of [a] plaintiff or as to what
third persons told witnesses concerning the effect which it had upon declarants'
opinions of [the] plaintiff . . . was admissible." 48 N.J. Super. at 449. Testimony
A-2255-16T3
20
from these parties is "relevant as rationally probative of those consequences of
the publication for which the law holds the defendant liable, i.e., the damage to
[the] plaintiff's reputation." Id. at 447. Absent defendant providing authority to
the contrary, it was not error to admit statements made by others to Buckner that
questioned his reputation and that of the firm, in many cases, with implicit
reference to the defamatory content in BackTrack's reports.
We find the balance of defendant's arguments about the insufficiency of
evidence supporting plaintiffs' claims for actual general damages to lack
sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). We affirm the judge's
denial of defendant's JNOV motion as it pertained to the jury's verdict awarding
NuWave, Buckner and Ryan actual general damages.
IV.
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." The trial judge must take into account "not only tangible
factors . . . as shown by the record, but also appropriate matters of credibility,
generally peculiarly within the jury's domain, . . . and the intangible 'feel of the
case' . . . gained by presiding over the trial." Dolson, 55 N.J. at 6. "[T]he
A-2255-16T3
21
standard for authorizing a new trial . . . requires a determination that the jury's
verdict is 'contrary to the weight of the evidence or clearly the product of
mistake, passion, prejudice or partiality.'" Crawn v. Campo, 136 N.J. 494, 512
(1994) (quoting Lanzet v. Greenberg, 126 N.J. 168, 175 (1991)).
We apply a similar standard on appeal, deferring to the trial court's
assessment of factors "which are not transmitted by the written record." Dolson,
55 N.J. at 7.
Although an appellate court has a duty to canvass the
record to determine whether a jury verdict was
incorrect, that verdict should be considered
"impregnable unless so distorted and wrong, in the
objective and articulated view of a judge, as to manifest
with utmost certainty a plain miscarriage of justice."
[Kassick v. Milwaukee Elec. Tool Corp., 120 N.J. 130,
135 (1990) (quoting Carrino v. Novotny, 78 N.J. 355,
360 (1979)).]
In denying defendant's post-verdict motions, the judge determined he had
not erred in his evidentiary rulings at trial, including permitting plaintiffs some
leeway in introducing evidence of defendant's liability. He concluded that
despite defendant's arguments to the contrary, it "was not hindered in any
significant way from" attacking plaintiffs' claims for damages, and that the jury
was extremely attentive and followed instructions regarding the evidence
needed to prove actual special and general compensatory damages.
A-2255-16T3
22
Before us, defendant argues it is entitled to a new trial based on the
erroneous admission of: "hearsay evidence" from Buckner and Ryan regarding
conversations with investors; "prejudicial hypothetical answers to non-probative
hypothetical questions"; evidence of liability and evidence also used to support
"punitive damages"; and "evidence of emotional damages caused by litigation
stress." It also asserts that the judge "excluded relevant evidence and argument
regarding alternative causes for plaintiffs' supposed reputational injury," and the
judge's charge failed to properly "inform the jury of . . . key limitations on
defamation damages." Defendant argues that collectively these trial errors
resulted in a miscarriage of justice requiring a new trial. We disagree.
We have already dealt with objections to the admissibility of "hearsay"
testimony. The "hypothetical" questions were contained in some of the
deposition readings. Generally, a witness was asked if allegations like those
contained in the BackTrack reports would impact investment decisions. The
judge carefully monitored the testimony, and we agree it was relevant to
corroborate the likelihood of reputational injury. 8
8
Defendant's brief alleges the judge excluded this type of testimony at the first
trial, arguing its admission here was so prejudicial that it provoked the much
larger jury damage awards. However, plaintiffs included a portion of the
transcript from the first trial in their appendix. It demonstrates that defendant
misstates the record from the first trial.
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Any evidence that remotely related to defendant's liability was limited in
scope, and, as the judge said, he admitted it solely to permit the jury to
understand some context for the damages trial. Moreover, defendant sought to
convince the jury that plaintiffs' decision to commence litigation circulated the
defamatory material, contending plaintiffs, not defendant, were responsible for
any damage suffered. That tack clearly invited some introduction of evidence
about the background of the dispute. Defendant totally mischaracterizes
Buckner's very limited testimony about "emotional damages," and, in any event,
its admission, even if error, did not cause a miscarriage of justice.
Turning to evidence excluded by the judge, defendant claims it should
have been permitted to introduce the nine statements contained in its reports that
plaintiffs alleged in their complaint were defamatory, but the first jury found
were not. However, over plaintiffs' objection, Buckner was specifically
questioned about the other statements in the report, and the jury was told in
opening statements that some of the alleged defamatory statements were in fact
found not to be defamatory by the first jury. Additionally, the actual reports
were in evidence, and defense counsel alluded to their length — more than two
hundred and fifty pages — and that much of what was in the reports was in the
public domain. Moreover, the judge's discretionary decision not to permit a
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demonstrative exhibit of the nine statements had no adverse effect upon
defendant's ability to argue to the jury that the defamatory statements were no t
a proximate cause of the alleged damages. We discern no miscarriage of justice
in those rulings.
Defendant argues the jury instructions, and the judge's response to the
jury's request for more guidance during deliberations, failed to adequately
explain the law governing defamation damages. Defendant contends a new trial
should have been granted because the judge refused to provide instructions on
concurrent causation, failed to restrict the jury from considering damages caused
by plaintiffs' republication of the defamatory statements, and refused to tell the
jury plaintiffs could not recover for damages caused by the litigation itself or
BackTrack's decision to stop issuing reports on NuWave and its principals.
We have reviewed the judge's charge and conclude that it accurately set
forth the law regarding damages and proximate causation. Defendant
specifically asked the judge to provide Model Jury Charges (Civil), 6.13,
"Proximate Cause — Where There is a Claim that Concurrent Causes of Harm
are Present and Claim that Specific Harm was not Foreseeable" (approved May
1998). Defendant argued it was essential to its defense that any damages
plaintiffs suffered were attributable to other causes, not its reports. However,
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defendant never posited an argument, nor does it now in its appellate brief, that
it was unforeseeable damages could be caused by its defamatory statements.
Defendant never precisely argues why the judge's response to the jury's request
for "some guidance" on the issue of actual general damages was wrong.
In short, none of defendant's claims of legal error clearly convince us that
the trial resulted in a "miscarriage of justice," Rule 4:49-1(a), resulting from
"mistake, passion, prejudice or partiality." Crawn, 136 N.J. at 512 (quoting
Lanzet, 126 N.J. at 175).
Affirmed.
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