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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4805-04T2 ELIE GRINBAUM, Plaintiff-Respondent/ Cross-Appellant, v. TOWNSHIP OF LIVINGSTON BOARD OF EDUCATION, PAMELA CLAUSE McGROARTY, SUSAN SILVERSTROM, and GARY SILVERMAN, Defendants-Appellants/ Cross-Respondents, and ROBERT GRADY and JEFF TRUPPO, Defendants. ______________________________________

Argued January 10, 2007 - Decided May 10, 2007 Before Judges Wefing, Yannotti and Messano. On appeal from Superior Court of New Jersey, Law Division, Essex County, No. L-4153-01. Christopher R. Welgos argued the cause for appellants/cross-respondents (Schwartz Simon Edelstein Celso & Kessler, attorneys;

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Nathanya G. Simon, of counsel; Denis G. Murphy and Mr. Welgos, on the brief). Fredda Katcoff argued the cause for respondent/cross-appellant (Rabner Allcorn Baumgart & Ben-Asher, attorneys; David H. Ben-Asher and Ms. Katcoff, on the brief). PER CURIAM The parties appeal and cross-appeal from a judgment entered by the trial court following return of a jury verdict and the trial court's decision of post-trial motions. After reviewing the record in light of the contentions advanced on appeal, we affirm in part, reverse in part, and remand for further proceedings. Plaintiff Elie Grinbaum suffers from bilateral Klumpke's palsy, resulting in a lack of muscle coordination and paralysis of both his hands and arms. He brought this suit against the Livingston Board of Education and certain individual defendants, alleging they failed to accommodate his resulting physical disabilities. Plaintiff's claims in this case revolve around his eighth and ninth grade years in Livingston's Mount Pleasant Middle School and Livingston High School. Defendant Pamela Clause McGroarty was the principal of the middle school; she assumed that position on November 1, 2000, during Elie's eighth grade year. Defendant Gary Silverman taught Elie eighth grade math, and defendant Susan Silverstrom taught eighth grade French. Plaintiff originally included as defendants Robert Grady, the Livingston Superintendent of Schools, and Jeff Truppo, vice-principal of the middle school, but the trial court dismissed them as parties before the matter was submitted to the jury. The jury found that defendant Board failed to provide reasonable accommodations to plaintiff, in the words of the verdict sheet, "in violation of section 504 of the Rehabilitation Act, the Americans with Disabilities Act or the New Jersey Law Against Discrimination" and awarded plaintiff damages of $500,000. It also found that the individual defendants violated plaintiff's civil rights, and it assessed damages of $150,000 against Ms. McGroarty, $75,000 against Ms. Silverstrom, and $25,000 against Mr. Silverman. Following post-trial motions, the trial court denied defendants' motions for judgment notwithstanding the verdict or a new trial but agreed the verdict returned by the jury was excessive and granted remittitur. It reduced the award against the Board to $250,000; it similarly reduced the awards against the individual defendants by half as well. It awarded plaintiff's counsel an attorneys' fee of $186,689.31 and denied pre-judgment interest. Plaintiff rejected the remittitur, and both sides have appealed.
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Elie's physical limitations have no effect on his intellectual abilities. From an early age he was enrolled in Livingston's program for gifted and talented students, and he has excelled academically. When this matter was tried, Elie was a senior in high school. He was ranked in the top ten percent of his class and was taking six advanced placement courses. He was a member of the high school's academic team, the French club, the Russian club, the National Honor Society, the French honor society, and the art honor society. Elie's early years in the Livingston school system were generally uneventful. A dispute did develop when he was in second grade when the school insisted that Elie wear a helmet during recess. We infer that this was the product of concern that he might fall and injure his head because he would be unable to use his arms to break his fall. Elie and his parents did not want him to be singled out in such a manner. The dispute was eventually resolved by Mr. Grinbaum coming to the school at recess time, signing Elie out, and then returning him at the end of the recess period. Elie testified that his difficulties really developed during the eighth grade because of the increased work load involved and the differing skills required. Because of Elie's disability, the Livingston school system each year prepared an Individual Accommodation Plan ("IAP") for him, outlining the specific accommodations that would be made for him during the course of the school year. These IAPs were prepared in accordance with § 504 of the Federal Rehabilitation Act of 1973, codified at 29 U.S.C. § 794. This provides in pertinent part: No otherwise qualified individual with a disability . . . shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . . Elie's eighth grade IAP for the academic year September 2000 to June 2001 listed the following specific interventions on his behalf: KEYBOARDING -- Speed and accuracy not to be addressed. Word processing programs to be used during keyboarding period to enhance computer skills. PHYSICAL EDUCATION -- Eli[e] will not be required to change his clothes for physical education. If scan-tron answer sheet is used in testing, Eli[] should be permitted to write in test booklet or use alternate form of answering which is appropriate for the particular test. Accommodations for which the student will be the advocate: Student will self-advocate when necessary. Elie testified that this last provision was inserted at his request because he wanted to be independent.

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His ninth grade IAP, for the academic year 2001-2002, was more detailed. It provided for the following accommodations: Elie will be excused from physical education with a medical note. A textbook will be made available in each class so that Elie does not have to carry or bring his book to class. Speed and accuracy will not be held against Elie in any computer course he takes. Extend time limits for the essay portion(s) of tests, quizzes, and in-class assignments up to 50% as needed. If a scantron sheet is used in testing, Elie should be permitted to write in/on the test booklet or use alternate form of answering which is appropriate for the particular test. Provide Elie with copies of class notes through a note buddy who will have access to carbonless paper. (Teachers will obtain this paper in the child study office.) A hall locker will be provided with a handle and will be handicapped accessible. Allow Elie to submit all homework in typewritten form. Provide Elie with a voice recognition program for the Board of Education computer he utilizes at home. Elie and his parents were not satisfied with the 2001-2002 IAP and commenced proceedings in the Office of Administrative Law ("OAL") with respect to what they perceived as its deficiencies. They were particularly distressed because the Board proposed, rather than giving him an entirely new computer, to upgrade the capabilities of the computer it had provided for Elie a few years earlier. Elie and his parents asserted this would not work as Elie progressed into the upper grades with ever more complex work. The Board took the position that it would wait and see what developed. By January 2002, half-way through the ninth grade, this administrative challenge was resolved. Among the settlement provisions was an agreement that Elie would be provided with "100% additional time" to complete an in-class assignment or test if he requested it at the conclusion of the allotted time. The parties also agreed to utilize the services of Cerebral Palsy of New Jersey, Inc. as a neutral party to assess what technologies should be utilized to assist Elie. Four witnesses testified on plaintiff's case: plaintiff himself, his twin sister Victoria, his father Zinovy and Robert Latimer, M.D., a psychiatrist. Dr. Latimer examined Elie in August 2004 and issued a report in November 2004, slightly more than three months before trial. Dr. Latimer expressed the opinion that Elie was suffering from depression as a result of his experiences in eighth and ninth grades and that his depression left him with psychological and psychiatric scars.

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Elie testified that he understood that under his eighth grade IAP he was to approach the teachers individually in the event he needed extra time to complete a quiz or a test. He recounted one incident in which Mr. Silverman gave a quiz and when he asked for extra time, he did not receive it. Mr. Silverman testified differently and said he denied the extra time because Elie did not ask for it until after several periods, at which point he had started to correct the papers. The jury was free to make its own determination as to which version to accept. Elie also testified that during the year other students used a graphing calculator and that he asked for a computer with scientific calculator software because he could not use the graphing calculator, but this was not provided. Mr. Silverman admitted the other students in the class did use a graphing calculator but said that Elie was able to do so as well. Again, the jury was free to make its own determination as to which version to accept. Elie received a "B" for the year in this class. Elie recounted several episodes from his time in Ms. Silverstrom's French class. He told of an assignment in which the class was to cut out a turkey and label its various parts with the correct French words. Elie was unable to use regular scissors, and he asked for assistance with the cutting portion of the assignment but Ms. Silverstrom merely told him to ask another student for help. He did not wish to interrupt them, however. At another point, Ms. Silverstrom took Elie out to the hall and told him that he should write down a description of his limitations; Elie found this embarrassing. Elie was unable to carry his books during the school day and Ms. McGroarty, at some point after her arrival as principal, arranged for an extra copy of the text books Elie used in his classes to be kept in the classroom for his use. Ms. Silverstrom, however, let another student, who had left her book at home, use the book intended for Elie. That student, moreover, did not return the book, and Elie was without the use of a textbook in class for some period of time. When his father complained to Ms. McGroarty, the principal immediately went to the storeroom and retrieved an additional copy for the boy. Finally, Elie and his father testified of an incident that occurred during the winter months. The class had been advised that when they returned to school on Monday, there was to be a quiz. A snowstorm intervened, however, and school was closed on Monday and Tuesday. When Ms. Silverstrom announced the test when school resumed the following day, certain students complained they had been unable to study because they had not had their books with them over the break. She allowed a fifteen-minute review period before giving out the test. Elie, who had his book at home with him and had studied over the break, felt this was unfair to him because it deprived him of an additional fifteen minutes in which to complete the quiz. Elie received an "A" in this class. Elie also testified as to his inability to take notes. As a result, he said he had to pay very close attention to what occurred in the classroom and commit it to memory. Elie's sister, Victoria, was a student in many of his classes. Elie was unwilling to rely on her notes because he did not consider them adequate in many respects.

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The IAP for eighth grade made no provision for notes. The IAP for ninth grade called for Elie to receive notes through a note buddy. The settlement that was reached in the administrative proceedings mid-way through ninth grade called for Elie's teachers, after consulting with him, to appoint a "note buddy" for him. That student would be supplied with carbonless paper and charged with giving Elie a copy of the notes taken each day. Elie testified that protocol was not followed with regularity. Elie testified as to one other aspect of his experience in ninth grade. Part of the curriculum for his math class involved trigonometry. Some of the students again had graphing calculators for use in connection with this aspect of the course. Elie said his disability made that impracticable for him. He requested a computer equipped with scientific calculator software. Instead, his math teacher handed out to the class a sheet containing the material that would have been displayed on such a calculator when certain functions were entered. Elie did not consider this an acceptable alternative. Elie received an "A" in this class. Elie contended this conduct was discriminatory and asserted claims under § 504 of the Rehabilitation Act, the Americans with Disabilities Act, 42 U.S.C. § 12131 to -213, and New Jersey's Law Against Discrimination, N.J.S.A. 10:5-1 to -48. He also asserted claims under 42 U.S.C. § 1983 as well as a claim for breach of contract. At trial, the court dismissed the breach of contract claim. Defendants first argue on appeal that the trial court erred in not dismissing the remainder of the claims. I We turn first to the contention that the court should have dismissed plaintiff's claims of discrimination under § 504, The Americans with Disabilities Act, 42 U.S.C. § 12131 to -213, and the Law Against Discrimination, N.J.S.A. 10:5-1 to -49. The parties agree that the test for liability under these three statutes is identical, and there is thus no need to conduct a separate analysis of the respective statutory provisions. McDonald v. Commonwealth of Pa., Dep't of Pub. Welfare, 62 F.3d 92, 94-95 (3d Cir. 1995); Borngesser v. Jersey Shore Med. Ctr., 340 N.J. Super. 369, 380 (App. Div. 2001). A defendant may be found liable under § 504 even if that defendant is not aware that the conduct complained of is prohibited; § 504 prohibits even unintentional discrimination against the handicapped. Borngesser, supra, 340 N.J. Super. at 379. In addition, § 504 creates three alternate bases for liability: excluding a disabled person from participating in a program, denying the disabled person the benefits of a program or subjecting the disabled person to discrimination. A defendant need not commit all three to be found liable under the statute; one is

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sufficient. The first prong, exclusion, is inapplicable here; Elie was not excluded from any programs or activities. Defendants stress the second prong and say that in light of Elie's academic achievements, it cannot reasonably be said that he was deprived of the benefits of the academic offerings. Elie's academic success, however, is not determinative of defendants' liability or lack thereof. Schmidt v. Odell, 64 F. Supp.2d 1014, 1033 (D. Kan. 1999) (the discrimination claim of plaintiff, a double amputee, was not barred because the inmate "was actually able to use most of the jail services . . . in light of the fact that he was able to do so only by virtue of exceptional . . . exertion . . . ."). Elie's claim rests upon the third prong, that he suffered from discrimination during the eighth and ninth grades by reason of defendants' failure to offer him appropriate accommodations for his handicap. As to that issue, the parties put forth conflicting evidence. The jury clearly accepted plaintiff's evidence and rejected defendants'. We are not free to disregard that choice. We perceive no basis to overturn the jury's verdict on liability under § 504, the Americans with Disabilities Act or our own Law Against Discrimination. II We turn now, however, to plaintiff's claim under § 1983. Here, we are satisfied, a different result obtains. This statute creates a federal cause of action against "[e]very person who, under color of any statute, ordinance, regulation, custom or usage of any State . . . subjects . . . any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws[.]" Private individuals, who act under color of state law, may be sued under § 1983 in either their official or individual capacities, or both. In re Petition for Review of Opinion 522 of the Advisory Comm. on Prof'l Ethics, 102 N.J. 194, 197 (1986). A judgment entered under § 1983 against a defendant based upon actions taken in his or her official capacity exposes the municipality to direct liability. Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 361, 116 L. Ed.2d 301, 309 (1991). A judgment entered against a defendant in his or her individual capacity, on the other hand, can be executed only against that defendant's personal assets, because a municipality is not liable under § 1983 for an employee's actions based on the doctrine of respondeat superior. Monell v. N.Y. City Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 2036, 56 L. Ed.2d 611, 636 (1978). The municipality may, of course, be obligated to indemnify the employee, either by statute or contract. In re Petition for Review of Opinion 522, supra, 102 N.J. at

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199-200. Initially, we reject so much of defendants' arguments as rest upon a claim of qualified immunity. Qualified immunity is an affirmative defense to a claim of liability under § 1983 that must be established by a defendant. Schneider v. Simonini, 163 N.J. 336, 354 (2000). Whether a defendant is entitled to qualified immunity is a question of law for the trial judge. Id. at 359. If the matter presents disputed questions of fact, as here, a jury must resolve those disputes by way of special interrogatories; based upon the answers, the trial judge will then determine the legal issue. Id. at 360. Here, however, defendants never presented to the trial court the issue of qualified immunity. They made no argument to the trial court that defendants had such an immunity and presented no evidence that defendants acted in an objectively reasonable manner. Plummer v. Dep't of Corrections, 305 N.J. Super. 365, 371 (App. Div. 1997). "If [the issue of qualified immunity is] not decided at the earliest possible stage of a litigation, the underlying purposes for the defense are frustrated because public officials are obliged to face the burdens of trial." Id. at 372. Defendants never having raised the issue before, we decline to consider it on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Further, we do not find it necessary to consider whether the trial court erred in not dismissing plaintiff's official capacity claims against the individual defendants. At the charge conference, plaintiff's counsel agreed to drop these official capacity claims, as well as the § 1983 claim against the defendant Board. Plaintiff's § 1983 claim was presented to the jury only as individual capacity claims against the individual defendants. We have set forth earlier in this opinion the factual complex plaintiff presented to the jury in support of his discrimination claims against defendants Silverman and Silverstrom and noted that the jury clearly accepted plaintiff's version of what occurred to him during his eighth and ninth grades in the Livingston schools. The actions taken by these two individuals had the capacity to embarrass and humiliate Elie and discriminate against him because of his physical limitations. The conduct that constituted a violation of his rights under § 504 or the Americans with Disabilities Act could also constitute a violation under § 1983. We see no error in submitting to the jury plaintiff's individual capacity claims under § 1983 against Silverman and Silverstrom. We are, on the other hand, satisfied that the trial court erred in submitting plaintiff's § 1983 claim against defendant McGroarty to the jury. Elie's father testified that he complained to her frequently about his son not receiving extra time on tests and about incidents that occurred in defendant Silverstrom's French class. He never contended, however, that McGroarty was rude to him or indifferent or unresponsive to his complaints. He said she arranged meetings with faculty members, spoke to the school superintendent and wrote letters to follow up on his
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concerns. Neither Elie nor his father alleged any one specific act on her part that violated Elie's statutory rights. Rather, his complaints against her were directed to her as the principal, the supervisor of Silverman and Silverstrom. The New Jersey Supreme Court dealt with the task of formulating the appropriate standard by which to measure the § 1983 liability of supervisors sued in their individual capacities in Schneider v. Simonini, supra. It concluded that the standard most consistent with the goals of § 1983 was one of "reckless or deliberate indifference." Id. at 373. Under the intermediate standard of "reckless or deliberate indifference" that we adopt, a plaintiff must establish "that: (1) the supervisor . . . failed to supervise the subordinate official; (2) a causal link exists between the failure to . . . supervise and the violation of the plaintiff's rights; and (3) the failure to . . . supervise amounts to deliberate indifference" or recklessness. Hinshaw v. Doffer, 785 F.2d 1260, 1263 (5th Cir. 1986). The knowledge element of a plaintiff's case requires proof that the supervisor was aware of facts from which an inference could be drawn that the subordinate was acting in an unconstitutional manner that carried a substantial risk of causing serious harm. In reality, the knowledge requirement is a "should have known" test. .... [A] court should consider five non-exclusive factors when deciding under the "recklessness or deliberate indifference" standard, whether to impose supervisory liability: (1) whether there were any prior incidents similar to the constitutional violation alleged by the plaintiff; (2) how adequate the supervisor's response was to those prior incidents; (3) how the supervisor responded to the violation alleged by this particular plaintiff; (4) to what extent the supervisor can be said to have been a causal factor in contributing to the constitutional violation; and (5) to what extent the supervisor was aware of the constitutional misconduct. [Schneider, supra, 163 N.J. at 373-74.] Having reviewed this record in detail, we are satisfied that the evidence presented was clearly insufficient to create a question whether Ms. McGroarty was reckless or deliberately indifferent to Elie's needs in supervising his teachers. III Defendants next contend that the trial court erred in denying their motion for a new trial on the basis that the verdict is against the weight of the evidence. R. 4:49-1(a) allows a court to set aside a jury verdict as contrary to the weight of the evidence when "it clearly and convincingly appears that there was a miscarriage of justice under the law." An appellate court, reviewing a trial court's determination of such a motion, should afford due deference to the trial court's intangible feel of the case, not contained within the cold transcript. Hill v. N.J. Dep't of Corr. Comm'r., 342 N.J. Super. 273, 302 (App. Div. 2001); Monheit v. Rottenberg, 295 N.J. Super. 320, 327-28 (App. Div. 1996); R. 2:10-1. Here, the trial court, which had the opportunity to hear the witnesses and assess their credibility, referred to the question of defendants' liability for failure to provide reasonable accommodations to Elie as a "no brainer." We have no basis to conclude that this assessment was erroneous.
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IV We turn now to defendants' argument that the trial court erred in its instructions to the jury. We note first that defendants made no objection at trial and thus must establish the existence of plain error. R. 2:10-2. We note also that we need not address so much of defendants' argument with respect to the jury charge as deals with qualified immunity. First, qualified immunity is a question of law for the trial court, not the jury. Schneider v. Simonini, supra, 163 N.J. at 359. Secondly, as we set forth earlier in this opinion, defendants never raised the issue of qualified immunity with the trial court. Defendants also complain that the court did not charge with regard to official capacity claims under § 1983. But, as we have noted, plaintiff abandoned his official capacity claims. Having reviewed the charge, however, we are satisfied that it contained a fundamental flaw in its discussion of damages. The court instructed the jury as follows: After considering the evidence, you shall award a lump sum of money that will fairly and reasonably compensate [plaintiff] for his emotional distress, pain and suffering, and loss of enjoyment of life. .... If you conclude that one or more individual defendants are liable for damages, please keep in mind that the damages caused by each individual defendant are already included in a damage award you may make against the Board. The claimed failure to accommodate goes beyond what . . . [plaintiff] alleges as to each individual defendant. For example, the failure to provide [plaintiff] with a computer. Thus, it is clear that the total award against the individuals, if you decide that any award is appropriate, must be less than any award against the Board if you decide one is appropriate. The reason, of course, that any damage awards against individual defendants could not exceed the total award against the Board is that these individual defendants were not responsible for certain of plaintiff's claims of discrimination, e.g., failure to provide an updated computer with voice-recognition software, which presumably were reflected in the over-all award against the Board. The verdict sheet, however, does not reflect the complexity of the court's instructions as to this but, rather, asks: 3. What amount of damages will fairly and reasonably compensate [plaintiff] for emotional distress, loss of enjoyment of life, and pain and suffering proven to be proximately caused by the violation of Section 504 of the Rehabilitation Act, the Americans With Disabilities Act or the New Jersey Law Against Discrimination? ....

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6. What amount of damages will fairly and reasonably compensate [plaintiff] for emotional distress, loss of enjoyment of life, and pain and suffering proven to be proximately caused by Pamela Clause McGroarty's violation of his civil rights? .... 9. What amount of damages will fairly and reasonably compensate [plaintiff] for emotional distress, loss of enjoyment of life, and pain and suffering proven to be proximately caused by Susan Silverstrom's violation of his civil rights? .... 12. What amount of damages will fairly and reasonably compensate [plaintiff] for emotional distress, loss of enjoyment of life, and pain and suffering proven to be proximately caused by Gary Silverman's violation of his civil rights? The jury returned a verdict answering Question 3 as "$500,000;" Question 6 as "$150,000;" Question 9 as "$75,000;" and Question 12 as "$25,000." The verdict sheet represents a correct statement of the law and on its face appears properly to assess damages against each of the individual defendants. Adding up the amounts awarded against each defendant, the total damage award would be $750,000. The problem however, is that the charge instructed the jury that in no event could the total award be greater than the amount set forth in response to Question 3. Thus, the jury probably believed that plaintiff's total damages would be $500,000 regardless of how it answered Questions 6, 9 and 12. For that reason, its allocation of damages among the individual defendants may have been completely arbitrary. Further, it is impossible to predict how the jury would have allocated damages if McGroarty were no longer one of the defendants. In our judgment, the basic import of the court's instructions on damages was to tell the jury that the Board would be vicariously liable for any damages caused by the individual defendants. This would be a correct statement of the law if plaintiff were pursuing an official capacities action against those individuals. See Monell v. N.Y. City Dep't of Soc. Servs., supra, 436 U.S. at 691, 98 S. Ct. at 2036, 56 L. Ed. 2d at 636. However, by the time the matter was submitted to this jury, plaintiff was only pursuing an individual capacities action against the individual defendants. Thus, damages had to be assessed against each individual defendant personally. Ibid. Liability for those damages would be the responsibility of that particular defendant. The fact that the Board might ultimately be liable for the damages pursuant to statutory or contractual obligations was not a proper matter for the jury's consideration. Indeed, as explained in In re Petition for Review of Opinion 522, supra, 102 N.J. at 201-02, although individual defendants may be indemnified against compensatory damages claims, such indemnification may not extend to any punitive damage awards. Given that plaintiff's punitive damages claims were still pending at the time the verdict was rendered, informing the jury that the Board would be responsible for all damages was prejudicial to the

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individual defendants. In light of the charge, it is impossible to read the jury's responses to the interrogatories on the verdict sheet as breaking down the damages as to each defendant. Thus, the error in failing to dismiss the § 1983 claim against defendant McGroarty cannot be corrected simply by striking the $150,000 award against her. We are satisfied that in light of our dismissal of the § 1983 claim against McGroarty, combined with our determination that the charge on damages was flawed, fairness requires defendants receive a new trial on damages. In such a new trial, the jury should not be made aware that the Board will be responsible for the totality of any award in light of the potential for such an instruction to skew any damage award. The proper presentation of plaintiff's damages claim to the jury was complicated by several factors. One, which we have already noted, is that plaintiff's claims against defendant Board encompassed conduct and actions for which the individual defendants bore no responsibility, as well as conduct for which they could be held responsible. If plaintiff had pursued an official capacities theory against the individual defendants under § 1983, rather than an individual capacities theory, it might not be necessary to separate out the damages attributable to the individual defendants and the jury could be asked simply to return one overall award. However, while defendant Board could be liable under the doctrine of respondeat superior for the actions of the individual defendants which constituted a violation of § 504, the Law Against Discrimination and the Americans with Disabilities Act, it is not liable under respondeat superior for the individual defendants' violations of § 1983. Monell, supra, 436 U.S. at 691, 98 S. Ct. at 2036, 56 L. Ed. 2d at 636. The parties have not had the opportunity to consider and address the proper formulation of jury instructions in light of our determination that the instructions here were incorrect. Because of the complexity of the issue, we decline to address it in the first instance. We consider it more appropriate to permit the parties to present their respective positions to the trial court on the retrial of this matter. V Following Elie's birth, his family commenced a medical malpractice action. In the course of preparing that matter for trial, plaintiff's counsel arranged for the preparation of a life-care plan, to demonstrate to the jury the extent of Elie's disability. One portion of that life-care plan was providing counseling to Elie to help him cope with his disability. Defendants in this matter wished to introduce that life-care plan, to argue to the jury that Elie's diagnosed depression was not attributable to defendants and that his parents had not provided counseling in accordance with that life-care plan. The trial court barred defendants' attorney from referring to that plan in his opening statement.
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Defendants now argue that was reversible error. The trial court's ruling was clearly a preliminary one, based upon the inherent hearsay problems in how defendants proposed to address the question. It did not hold the life-care plan inadmissible in all circumstances. Defendants, however, made no effort during the trial to overcome the hearsay problems that the trial court noted in its ruling. The court's in limine ruling provides no basis to disturb the judgment. VI Defendants also argue that the trial court erred in permitting plaintiff's expert, Dr. Latimer, to testify and in not granting a larger remittitur. Defendants moved to bar Dr. Latimer's testimony as not conforming to the appropriate standard of medical probability based upon one portion of his deposition testimony. Dr. Latimer's trial testimony, however, was clearly in conformity with legal standards and defendants presented no expert testimony to contradict the opinions expressed by Dr. Latimer. Because we are satisfied, for the reasons we have set forth earlier, that defendants are entitled to a new trial on damages, we decline to address their challenge to the sufficiency of the remittitur granted by the trial court. We also decline to address plaintiff's contention on his cross-appeal that the trial court erred in granting a remittitur in the first instance. VII On his cross-appeal, plaintiff also challenges the award of counsel fees, contending that the trial court improperly reduced the amount of fees to be awarded. On this issue, we affirm substantially for the reasons expressed by the trial court in its careful and comprehensive oral opinion of April 25, 2005. Plaintiff also contends that the trial court erred in denying his application for pre-judgment interest. In an opinion issued after the trial of this matter, the Supreme Court held that prejudgment interest could be assessed against a public entity on claims under the Law Against Discrimination. Potente v. County of Hudson, 187 N.J. 103 (2006). Calculation of that prejudgment interest, however, must abide the results of the new trial on damages. The final issue on plaintiff's cross-appeal is the trial court's dismissal of his claim for punitive damages. This, he asserts, was erroneous. We disagree. Punitive damages may be awarded under § 1983 "when the defendant's conduct is shown to be

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motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Coleman v. Kaye, 87 F.3d 1491, 1497 (3d Cir. 1996). Plaintiff also sought punitive damages from defendant Board under New Jersey's Law Against Discrimination. A plaintiff may recover punitive damages under that statute upon a showing of "actual participation in or willful indifference to the wrongful conduct on the part of upper management" and "proof that the offending conduct is especially egregious." Baker v. Nat'l State Bank, 161 N.J. 220, 223 (1999). We agree with the trial court that the conduct at issue here fails to meet either of these exacting standards. Plaintiff's claim for punitive damages was correctly dismissed.

The judgment under review is affirmed in part and reversed in part, and the matter is remanded to the trial court for further proceedings in accordance with this opinion. We do not retain jurisdiction.

Suit was originally commenced by Elie's father as his guardian ad litem. Once Elie attained eighteen years of age, the pleadings were amended to substitute Elie individually. This statute is generally referred to as § 504; we will use that terminology in this opinion. Plaintiff has cross-appealed from the dismissal of his breach of contract claim. As to that, we find insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). (continued) (continued) 28 A-4805-04T2 May 10, 2007 0x01 graphic

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