Former In—House Counsel Sees Hope with New Trial

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In her previous trials, the courts have rule against Tartaglia in the case, saying that she could not claim a retaliatory discharge because she had not first taken the issue to someone externally. The previous rulings were based on a previous case, Pierce v. Ortho Pharmaceuticals Corp. , 84 N.J. 58 (1980), which lawyers and judges claimed required the issue to be taken to an external authority in order for a retaliatory discharge claim to be made. However, Justice Helen Hoens ruled that the lower courts had misinterpreted the Pierce case by saying all retaliatory discharge claims must first have been taken externally.

Tartaglia, then, was ruled in favor of in Tartaglia v. PaineWebber, A-107/108-06. Hoens stated Tartaglia did not first have to complain externally and could go forward with her retaliatory discharge claim in a new trial. Hoens went on to clarify. She discussed Pierce and other cases that had been used to dismiss Tartaglia's retaliatory discharge claim, explaining that those plaintiffs should have pursued external avenues, that nothing in any of the previous cases set precedent to require this action. ''Although she need not have voiced a complaint to an external authority, she must demonstrate that she took other actions reasonably calculated to prevent the objectionable conduct.''

In addition to this positive ruling for Tartaglia, Hoens went on to rule that in the Appellate Division, Superior Court Judge Jose Fuentes was wrong in not allowing the jury to decide whether an adverse inference could be drawn from other of Tartaglia's allegations that PaineWebber destroyed or lost documents about her termination. These documents were central to her claims. Fuentes ruled that the adverse-inference charge was improper because Tartaglia had no way of proving if the documents were done away with specifically to weaken her case. However, the appeals court and the justices claimed that if the charge had stood that power would have, and should have, rested with the jury. ''In the context of a claim of spoliation by a defendant, the use of an adverse inference should create a complete substantive remedy because the jury will decide, as part of its case in chief, whether the missing evidence existed and was destroyed by defendant,'' said Hoens.

So, this is all good news for Tartaglia, but she will have to tighten up her case in retrial. Hoens instructed Tartaglia to have outlined specifically the ethical boundaries she claims PaineWebber went beyond. It was unclear in the previous rulings what RPC (Rule of Professional Conduct) Tartaglia was accusing PaineWebber of having broken. In the retrial she will have to clarify whether it was RPC 1.7(b), which it appeared to be, but which she had not specified.

Fredric Gross, Tartaglia's lawyer, is optimistic about the ruling. He stated the court had provided necessary clarification about the Pierce claims and what they inferred for other cases. Gross was also grateful for the ruling on the adverse inference. ''Those documents were discoverable,'' Gross said, ''But they [PaineWebber] destroyed them.''

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