SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-0765-22

JOEY CUTRI, 

 Plaintiff-Respondent, 

v.

TEC-CAST, INC., ROBERT 

MOREHARDT, JR., and 

LYNNE BISS, 

 Defendants-Appellants. 

_________________________ 

Argued March 12, 2024 – Decided April 18, 2024 

Before Judges Paganelli and Whipple. 

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Docket No. L-8474-19.

David M. Alberts argued the cause for appellants 

(McElroy, Deutsch, Mulvaney & Carpenter, LLP, 

attorneys; David M. Alberts, of counsel and on the 

briefs). 

Christopher P. Lenzo argued the cause for respondent 

(Lenzo & Reis, LLC, attorneys; Christopher P. Lenzo, 

of counsel and on the brief). 

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-0765-22

PER CURIAM 

Defendants Tec-Cast, Inc., (Tec-Cast), Lynne Biss, and Robert 

Morehardt, Jr. appeal from a final judgment after a jury trial. We affirm. 

Plaintiff Joey Cutri sued his former employer—Tec-Cast—his former 

immediate supervisor—Biss1—and the company's owner and CEO—

Morehardt—under the New Jersey Law Against Discrimination (NJLAD), 

N.J.S.A. 10:5-1 to -50. A jury found defendants discriminated against plaintiff 

when he was terminated while undergoing cancer treatment. Defendants Biss 

and Morehardt were also found individually liable for aiding and abetting the 

discriminatory conduct. 

In November 2010, plaintiff was hired by Tec-Cast, a manufacturer and 

distributor of aluminum casings, as assistant comptroller. In his only written 

performance evaluation in 2017, plaintiff was described as excellent and was 

considered a candidate to eventually replace Biss after her retirement. In 

September 2018, plaintiff was promoted to comptroller and inherited Biss's 

responsibilities after she retired from her position as CFO. Biss continued to 

work for Tec-Cast on a part-time basis as an independent contractor. 

1

 Biss was the company's Chief Financial Officer (CFO) and later a financial 

consultant. She is also plaintiff's mother-in-law. 
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In December 2018, plaintiff was diagnosed with cancer. He disclosed his 

cancer diagnosis to his employer and Biss. According to plaintiff's wife, in early 

2019, Biss remarked to her that plaintiff was "using his cancer as a crutch" and 

plaintiff only had a job because of Biss. In April 2019, Biss returned to the 

company's payroll as an employee and asked for all of plaintiff's work-related 

usernames and passwords. She also began excluding plaintiff from her 

conversations with Morehardt. By June 2019, plaintiff confronted Biss about 

the "cancer as a crutch" comment. In July 2019, plaintiff called Morehardt and 

expressed concern his job was at risk; plaintiff was especially concerned, given 

his upcoming cancer surgery and his wife's pregnancy. Morehardt assured 

plaintiff his job was secure. 

In August 2019, plaintiff underwent cancer surgery and began a medical 

leave of absence to recuperate. Plaintiff texted Biss that his physician cleared 

him to return to work after Labor Day 2019, but he received no reply. A few 

days after the text was sent, plaintiff received a letter from Morehardt 

terminating his employment. 

Morehardt decided that one of the two financial jobs at Tec-Cast, held by 

plaintiff and Biss, would be eliminated. Morehardt and Biss together, knowing 
4 A-0765-22

plaintiff had cancer and was undergoing medical treatment, decided that Biss 

would remain, and plaintiff would be dismissed. 

From 2016 to 2019, Tec-Cast's business also suffered a revenue decrease 

of eight percent due to the general economic environment. During this time, the 

company lost key employees to competitors, leading to its imminent closure, 

and forcing Tec-Cast to make financial decisions that allowed it to continue 

operations. Defendants assert this economic downturn led to the simultaneous 

elimination of five positions, including plaintiff's. Morehardt testified he 

preferred to keep Biss because she had more experience than plaintiff. Other 

employees also lost their positions at the same time as plaintiff. 

Plaintiff sued, alleging he was terminated because of his cancer and 

subsequent medical leave, in violation of NJLAD. During discovery, defendants 

objected to plaintiff's reliance upon the Biss remark as evidence of 

discrimination, arguing plaintiff had not included it in his complaint or written 

discovery responses. However, the complaint plaintiff made to Biss about the 

remark was part of Biss's deposition; she related that plaintiff declared an 

unidentified third person told him Biss had made the remark. Plaintiff never 

amended his discovery responses to reference the alleged Biss remark or to 

identify the person who first reported the remark. 
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Plaintiff moved to amend his complaint five days before the discovery end 

date to include the alleged Biss remark, with a return date after the close of 

discovery. At that same hearing, plaintiff's wife was identified as the source for 

the Biss remark. The court denied the motion. 

At the conclusion of discovery, defendants moved for summary judgment 

asserting: (1) plaintiff failed to proffer sufficient evidence from which a jury 

could reasonably find discrimination, and (2) plaintiff was unable to 

demonstrate individual liability. The motion judge denied summary judgment, 

determining it was a question for the jury to decide whether Biss uttered the 

remarks that plaintiff was using his illness as an "excuse" or "crutch" at work. 

On the eve of trial, defendants moved in limine to bar plaintiff's wife from 

testifying. The court denied the motion citing defendants failed to depose 

plaintiff or plaintiff's wife, and failed to investigate the statement, despite Biss 

referencing it during her deposition. The court concluded defendants should 

have, but failed to, explore the Biss remark during discovery. At trial, the court 

allowed plaintiff's wife to testify Biss made disparaging remarks about plaintiff's 

cancer. 

After a multi-day trial, the jury returned a verdict for plaintiff and awarded 

compensatory damages. On September 26, 2022, the court entered a final 
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judgment for a total amount of $611,795.91—$147,494 in past economic 

damages, $150,000 in past emotional damages, $287,953.31 in attorney's fees, 

and $26,348.60 in interest—against all defendants. This appeal followed. 

On appeal, defendants first argue the motion judge erred by allowing 

testimony from plaintiff's wife about Biss's "crutch" remark; they also assert 

individual liability cannot be imposed against a primary decision maker under 

NJLAD. We find both arguments are unavailing. 

I.

Defendants contend plaintiff used the discovery process to prejudice them, 

and argue the trial court's rulings on the Biss remark were contradictory and led 

to reversible error. We discern neither contradiction, nor error. 

The motion judge denied plaintiff's motion for leave to amend the 

complaint to add allegations about the Biss remark, because plaintiff had known 

about the alleged comment prior to the end of discovery and had not acted on it. 

The judge determined allowing the late amendment would require reopening 

discovery, which would be substantially prejudicial to defendants. However, 

the motion judge did not bar the remark, because it had been uncovered during 

discovery and was, therefore, in the record. 
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Biss stated in her deposition that, during an argument, plaintiff accused 

her of saying "he used his illness as an excuse to get away with things," but that 

she "never said that." The parties disputed whether Biss made the remark; they 

did not dispute plaintiff made that complaint to Biss. 

The motion judge relied on the alleged Biss remark, finding that the 

"record contain[ed] evidence that defendants chose [to terminate] plaintiff rather 

than [Biss] . . . because of plaintiff's cancer." The motion judge found the 

evidence of pretext included defendants having plaintiff replace Biss upon her 

retirement but "revers[ing] that decision after [plaintiff] developed cancer, 

complained about . . . Biss making remarks about him using his cancer as a 

crutch," and going on medical leave after undergoing surgery. 

 "[T]he decision to admit or exclude evidence is one firmly entrusted to the 

trial court's discretion." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 

N.J. 369, 383-84 (2010). "If a witness is not testifying as an expert, the witness' 

testimony in the form of opinions or inferences may be admitted if it: (a) is 

rationally based on the witness' perception; and (b) will assist in understanding 

the witness' testimony or determining a fact in issue." N.J.R.E. 701. Here, the 

trial judge stated, "there was nothing during the discovery period . . . that 

prevented the defendants from taking a deposition of the plaintiff's spouse or 
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conducting any form of discovery as it relates to the illness as an excuse remark." 

Additionally, the trial judge allowed plaintiff's spouse to testify because nothing 

precluded her from testifying as a lay witness with knowledge of the matter at 

hand pursuant to N.J.R.E. 701. We discern no abuse of discretion in these 

decisions. 

II. 

Defendants next contend Morehardt cannot be individually liable as an 

aider and abettor because he was the sole person who eliminated plaintiff's 

position; Morehardt argues he cannot aid and abet his own conduct. He argues 

that an "alleged principal wrongdoer, cannot aid and abet his own wrongful 

conduct," and, thus, a principal wrongdoer cannot be liable under NJLAD. 

Newsome v. Admin. Off. of the Cts, 103 F. Supp. 2d 807, 823 (D.N.J. 2000). 

Morehardt asserts the claims against him should have been dismissed, and the 

verdict against him should be reversed. We disagree. 

We reject these arguments because they overlook the full record and are 

unavailing. The record does not demonstrate Morehardt was acting alone. The 

trial court rejected this "sole person" argument when it denied defendants' 

summary judgment motion, concluding—based on the deposition testimony of 

both individual defendants as well as sworn interrogatory answers—there was 
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sufficient evidence that both individual defendants participated in the decision 

to dismiss plaintiff. 

Additionally, at the conclusion of the trial, the judge charged the jury 

utilizing the New Jersey Model Civil Charge 2:22A for Individual Liability 

under the NJLAD: 

If you find that Tec-Cast has unlawfully discriminated 

against plaintiff, you must then consider whether Lynne 

Biss and Robert Morehardt should be held individually 

and personally responsible for aiding and abetting that 

discrimination. 

To hold either of these individuals liable, 

plaintiff must show that one, the individual defendant 

was generally aware of his or her role in the overall 

illegal, unlawful, and tortious activity at the time that 

he or she provided the assistance; and two, the 

individual defendant knowingly and substantially 

assisted Tec-Cast in discriminating against the plaintiff. 

You may consider the following five factors 

when deciding whether Lynne Biss or Robert 

Morehardt knowingly and substantially assisted TecCast discrimination against plaintiff. 

One, the nature of the wrongful conduct incurred. 

Two, the amount of assistance the individual provided 

to Tec-Cast. Three, whether the individual defendant 

was present at the time that the discrimination occurred. 

Four, the individual defendant's relationship to anyone 

else involved in the discrimination. And five, the

individual defendant's state of mind.
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An[] individual defendant's failure to act so as to 

protect plaintiff or failure to respond effectively to 

plaintiff's complaints of discrimination is insufficient 

to conclude that the individual defendant provided 

substantial assistance to Tec-Cast so as to hold the 

individual defendant personally liable. 

 The "aiding and abetting" analysis under N.J.S.A. 10:5-12(e) requires a 

finding of "active and purposeful conduct." Tarr v. Ciasulli, 181 N.J. 70, 83 

(2004). To support this finding, a plaintiff must demonstrate: (1) the party 

whom the defendant aids performed a wrongful act that caused an injury; (2) the 

defendant must be generally aware of his role as part of an overall illegal or 

tortious activity at the time that he provides the assistance; and (3) the defendant 

must knowingly and substantially assist the principal violation. Hurley v. Atl. 

City Police Dep't, 174 F.3d 95, 127 (3d Cir. 1999). 

 Defendants did not object to the Model Civil Charge. In addition, under 

those instructions and having considered the evidence, the jury returned a 

verdict finding individual liability for Morehardt as represented by the findings 

in the verdict sheet. We discern no reason to disturb the jury verdict. 

Any remaining arguments raised by defendants are without sufficient 

merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). 

Affirmed.