HECTOR L. CRUZ v. HEATHER L. GLENN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2093-07T32093-07T3

HECTOR L. CRUZ and YESENIA

CRUZ, his wife,

Plaintiffs-Respondents,

v.

HEATHER L. GLENN,

Defendant-Appellant.

______________________________________________

 

Argued May 27, 2008 - Decided

Before Judges Collester, C.S. Fisher and C.L. Miniman.

on appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3873-04.

John R. Leith argued the cause for appellant (Mattson, Madden & Leith, attorneys; Mr. Leith, of counsel and on the brief).

James A. Meszaros argued the cause for respondent (Starr, Gern, Davison & Rubin, attorneys; Mr. Meszaros, on the brief).

Walter L. Faust argued the cause for amicus curiae Association of Trial Lawyers of America-New Jersey.

PER CURIAM

Unfortunately, this is the second time this case has come before us as a result of erroneous procedural rulings. The action itself is relatively simple. Plaintiff Hector L. Cruz filed a complaint that alleges he suffered personal injuries when his vehicle was struck as a result of defendant Heather L. Glenn's alleged negligent operation of her vehicle.

In an earlier appeal, we reversed the entry of summary judgment in favor of defendant, concluding that the judge then handling the matter mistakenly precluded plaintiff from relying upon a supplemental expert report, and that she also erred in viewing that expert's initial report as containing only an inadmissible net opinion. We rejected both those determinations in reversing the summary judgment. And, because we found plaintiff was entitled to rely upon the opinions contained in the supplemental report at the time of trial, we held that defendant should be afforded "a full and fair opportunity to conduct discovery regarding the supplemental report or to provide an additional report in rebuttal," and, as a result, we did "not foreclose the reopening of discovery for a brief period of time." Cruz v. Glenn, No. A-4010-05T1 (App. Div. April 4, 2007) (slip opinion at 8). We did not retain jurisdiction.

Thereafter, defense counsel retained Dr. Douglas M. Noble to serve as a defense expert and forwarded his report to plaintiff's counsel on June 1, 2007. Plaintiff's counsel served a notice to produce in which he sought the production of records that would reveal the extent to which Dr. Noble provided services for defendants and insurance carriers. Specifically, plaintiff sought (1) "[t]he number of independent medical evaluations and reports" that Dr. Noble performed or provided "for defendants and insurance carriers for the time period of January 1, 2005 through December 31, 2006"; (2) "[a] breakdown of monies received" by Dr. Noble "through any corporate entity . . . including the amounts of monies received from each insurance company and/or their representatives . . . and . . . 1099s received for any medical evaluation, reports and testing relating to legal/medical matter[s] for the aforesaid services" from January 1, 2005 through December 31, 2006; (3) "[t]he number of trial appearances and video taped depositions made by Dr. Noble on a yearly basis, and the matters in which he appeared for the period of time beginning January 1, 2005 through June 1, 2007"; and (4) "[t]he fees received during 2005, 2006 and 2007 for any trials in which Dr. Noble testified on behalf of defendants and/or insurance carriers . . . or from any other source relating to trial testimony in person or by video testimony."

Defense counsel responded two days later, indicating that neither he nor his client possessed the information sought and suggesting that defense counsel take Dr. Noble's deposition.

Plaintiff moved in August 2007 for an order compelling defendant's response to the notice to produce. The motion was made returnable September 7, 2007. Because of his vacation plans, defense counsel obtained the consent of his adversary and sought an adjournment of the motion from the judge newly assigned to the matter. On September 4, 2007, defense counsel wrote to the judge stating in part the following:

Plaintiff's attorney has filed a motion seeking to have [Dr. Noble] produce documents. On behalf of the defendant, we object to the application and I will be submitting opposition papers.

The motion has a return date of 9-7-07. With the consent of plaintiff's attorney, I appeared at Your Honor's Chambers on 8-27-07 and requested that the motion date be adjourned to 10-19-07. Your secretary indicated that the adjournment request would be granted.

I will be out of the country on vacation until 10-03-07. The trial date which had been scheduled for 10-15-07 has been adjourned at my request to 12-3-07.

When defense counsel returned from his vacation, he found on his desk the judge's September 11, 2007 order, which granted in part the relief sought by plaintiff. As a result, on September 27, 2007, defense counsel wrote to the judge stating in part the following:

In August of 2007, I appeared at Your Honor's Chambers in the Wilentz Justice Complex and spoke with both the Law Clerk and Your Honor's secretary regarding my request for an adjournment of the hearing date for 9-7-07. I was advised by both the Law Clerk and your secretary that there would be no problem with my request that the matter be rescheduled for hearing on 10-19-07.

After my appearance at Your Honor's Chambers, I forwarded a letter to Your Honor's attention . . . confirming that the hearing date had been adjourned to 10-19-07. I initially anticipated that I would be out of the country until early October, however, I returned to my office on 9-25-07, at which time, on reviewing my mail, I found that Your Honor had entered an order on 9-11-07.

Defense counsel indicated in the letter that he had intended to oppose the motion and requested the rescheduling of a hearing on plaintiff's discovery motion for October 19, 2007.

Defendant was advised in response that the "best that could be done" was that he file a motion for reconsideration. Defense counsel filed such a motion, setting forth the circumstances we have referred to regarding his request for an adjournment, and seeking the judge's reconsideration of the September 11, 2007 order in light of the argument and legal authorities contained in his memorandum of law. Plaintiff filed opposition, and argument on the motion for reconsideration was heard on November 2, 2007. On that date, for the reasons contained in an oral decision, the judge entered an order denying the motion for reconsideration.

We granted defendant's motion for leave to appeal and also granted the request of the Association of Trial Lawyers of America (ATLA) to be heard as amicus curiae. We now vacate the order of September 11, 2007 and reverse the order of November 2, 2007.

Underlying the procedural difficulties that have plagued this matter since our last remand is an interesting issue: whether or to what extent an adverse party may obtain an order compelling an expert to divulge financial information about his or her practice for the ostensible purpose of challenging the expert's credibility at trial. Defendant has argued as a general matter that the discovery of personal financial affairs and confidential business information of non-parties is "not unbridled and not unlimited." Berrie v. Berrie, 188 N.J. Super. 274, 282 (Ch. Div. 1983). Defendant has also cited decisions emanating from other jurisdictions which have recognized significant limitations on requests such as that made here, see Primm v. Isaac, 127 S.W.3d 630 (Ky. 2004); Elkins v. Syken, 672 So. 2d 517 (Fla. 1996), and that the credibility of an expert may be challenged without resort to drastic invasions of the expert's privacy rights. In addition, defendant has expressed concern that intrusion into these matters may have a chilling effect on the availability of qualified and experienced experts, who may not wish to undergo this type of scrutiny. See Cooper v. Schoffstall, 905 A.2d 482, 494 (Pa. 2006). Plaintiff, on the other hand, argues that an expert's status as a professional witness presents a ripe area for cross-examination, citing Janus v. Hackensack Hosp., 131 N.J. Super. 535, 539-41 (App. Div. 1974), certif. denied, 67 N.J. 95 (1975) and State v. Williams, 252 N.J. Super. 369, 382 (Law Div. 1991). In this regard, plaintiff has alluded to numerous unpublished decisions of trial court judges, who have granted relief along the lines obtained by plaintiff by way of the September 11, 2007 order. ATLA presents similar arguments and contends that the order of September 11, 2007 was particularly appropriate because, ATLA contends, Dr. Noble has at times been less than forthcoming when deposed about such matters, as ATLA believes is suggested by one of the unpublished decisions provided in its appendix.

We express no view on the merits of these arguments either as a general matter or as they may pertain to Dr. Noble in particular. Instead, because of the procedural difficulties engulfing the presentation of this issue in the trial court, we will simply undo what has occurred and remand for further proceedings regarding plaintiffs' motion to compel production of the materials in question.

As we have already observed, on the original return date, the judge considered plaintiff's motion to compel the production of 1099s and other financial and business information from Dr. Noble as if the motion was unopposed. No written or oral decision was provided by the judge at that time. When defense counsel later asserted his belief that the judge had adjourned the motion, he moved for reconsideration.

On the return date of the reconsideration motion, the judge expressed her disagreement with defense counsel's factual assertions. The judge indicated that she had been transferred from the Family Part to the Civil Part as of September 1, 2007, and that any request for an adjournment at the end of August would have been presented to the staff assigned to her in the Family Part. The judge then indicated that she had "checked with all of those people and the good news is that I do have my staff so terrorized that they would not grant an adjournment without speaking to me directly," suggesting that defense counsel's contention about having been allowed an adjournment of the discovery motion was not factually correct.

The judge and defense counsel then engaged in a discussion about the legitimacy of the September 11, 2007 order. Before long, the judge terminated defendant's argument:

[DEFENSE COUNSEL]: And I think what Your Honor should do here at the very least if Your Honor chooses to rule then -- then there should be a confidentiality order, there should be what reason, Judge, if we're --

THE COURT: Okay. Counsel --

[DEFENSE COUNSEL]: -- if we're here to seek the truth --

THE COURT: -- Counsel, stop, stop. I am indulging you and accommodating you. These are not arguments that are appropriate on a motion for reconsideration. You are in essence rearguing what was proper and appropriate and available at the initial motion. And I am not going to hear anything further. You are just arguing more of the same.

[DEFENSE COUNSEL]: Judge --

THE COURT: And there's no law.

[DEFENSE COUNSEL]: All right.

THE COURT: This is --

[DEFENSE COUNSEL]: All right.

THE COURT: -- a motion for reconsideration.

[DEFENSE COUNSEL]: Then I want to make my record, Judge, because --

THE COURT: No, no, no. You are to cease and desist --

Thus limited, counsel referred to the circumstances that led him to believe the discovery motion had been adjourned from September 7, 2007 to October 17, 2007, in order to convince the judge that the order entered in his absence should be reconsidered. He argued that the judge's staff had advised him that the motion would be adjourned and that he also heard no discouraging word following his service of the September 4, 2007 letter that confirmed the adjournment. The judge terminated this argument as well, apparently because she believed counsel's representations to be false in light of her own investigation:

I am telling you and I wish not to proceed further on this that I was concerned with your certification that you received from my law clerk and my secretary assurances that although I was there -- you see, I wasn't even in the State on the day that you allegedly came to my chambers in Family.

Do not proceed with this because I am fully prepared to place on the record what I understood occurred, which would include the information that I gained from the people who were -- who you say were there and gave you permission. It's not likely that a Family Part law clerk and a Family Part secretary would give consent to an adjournment of a Civil Part matter when their Judge was not even sitting Civil. Do not go there and do not go any further on that because we are here on a motion for reconsideration.

When the judge concluded these comments with her command that she was not "going to indulge this and permit you to redo the arguments I heard and made a decision about," defense counsel pointed out that there had been no prior argument. When the judge retorted that she had "read the papers," defense counsel queried, "What papers?," correctly observing that the judge "didn't have my papers" at the time of her original ruling. What immediately followed that exchange was this:

THE COURT: Okay. Counselor, anything new that you've not -- I've not reviewed previously or not heard today? Is there anything new that you would add to -- like to add to this record?

[DEFENSE COUNSEL]: Well, Judge, I'm -- I'm not understanding where you're going because everything that I gave you is new. I never had a chance. I was foreclosed from presenting an argument because -- and -- and I don't know what information you -- and I'm very -- I'm very concerned and put it on the record, Judge, because I personally was there. I've been practicing law for 35 years. I don't make the representations that are untrue. I went there. I spoke with your law clerk. I spoke with your secretary. And the confirming letter is in the file, Judge. I wrote a letter immediately and said confirming all this. That's not a -- that's not a misrepresentation. That happened, Judge. And I -- I feel --

THE COURT: All right. Counselor, thank you. And you can be seated.

We agree with defense counsel that he was unfairly placed into a Catch-22. His argument on the merit of plaintiff's discovery motion was cutoff with the reminder that he was seeking reconsideration and only permitted to argue what was new or in addition to what was previously presented. When counsel argued that the matter should be reconsidered because he had not previously submitted opposition as a result of the faux pas regarding the adjournment, the judge again terminated the argument.

In ruling on the motion for reconsideration, the judge first indicated her rejection of defense counsel's claim that he had spoken with the judge's staff and was informed that the motion would be adjourned. In her oral decision, the judge stated that because she was not in New Jersey on the date in question, "it was not possible for anyone to talk to me on August 27th to give my consent for an adjournment." We note that defense counsel never asserted that he spoke with the judge; he represented that he spoke to the judge's secretary and law clerk and that they had assured him that the matter would be adjourned. The judge then denied that her chambers received counsel's letter of September 4, 2007. And, lastly, the judge indicated that she had spoken "to the individuals that were staffing my court at the time and neither of them recall giving consent to an adjournment or permission for an adjournment," and that "both of them indicated to me that they knew that they could not have done that" (emphasis added). In short, the judge rejected the veracity of counsel's sworn statements in favor of unsworn statements made to her out of the presence of counsel by former members of her staff. Interestingly, the judge's recitation of what she had learned indicated only that the staff members did not "recall" the event and that both staff members "knew that they could not have done that" -- that the staff members knew that they were not permitted to grant an adjournment in this fashion does not mean that they did not act contrary to that knowledge on the day in question.

We find the judge's approach unacceptable in resolving a factual dispute upon which rested important rights. If the judge felt it important to obtain fact finding regarding the circumstances, then the unnamed staff members should have, at least, executed certifications regarding their recollections, and, if a dispute arose in comparing those certifications with defense counsel's, a hearing should have been conducted at which all witnesses possessing relevant information could be examined. We find it inappropriate for a judge to attempt to resolve a factual dispute by relying solely upon her own investigation without, at the very least, providing the details of that investigation to the interested parties and without providing an opportunity for cross-examination of the unnamed witnesses in a proceeding conducted in open court by a disinterested judge.

Of course, we do not mean to suggest that any such disagreements between court and counsel of this type or regarding off-the-record events must give rise to elaborate hearings. A far more palatable way of dealing with what occurred here would have been for the judge to simply allow defendant a full and fair opportunity to respond to and be heard on the merits of the original motion. The efficient administration of justice would hardly have been impaired by providing defendant with the benefit of the doubt about what transpired between him and the court's staff. Mistakes are made -- sometimes by the court and sometimes by counsel. Besides being more sensible and efficient, it is in keeping with our traditions to take an approach in such uncertain circumstances that would lead to a resolution of the controversy on its merits and not on a procedural nicety or simple misunderstanding.

The judge regrettably and erroneously viewed defendant's right to be heard, even on the motion for reconsideration, as an "accommodation" or something to be "indulged" rather than a right highly valued in our system of resolving disputes. We conclude that defendant was not given a fair opportunity to respond to the merits of plaintiff's discovery motion and was not given a fair opportunity to be heard on the return date of the motion for reconsideration. As a result, we will reverse the order of November 2, 2007, which denied reconsideration, and we will vacate the order of September 11, 2007 and remand for further proceedings.

Alternatively, we vacate the September 11, 2007 order because the judge's few comments regarding the merits of plaintiff's motion, which were made during the course of the judge's decision on the reconsideration motion, do not equate with the type of decision required by R. 1:7-4(a). After rejecting defense counsel's contention that he had requested and obtained an adjournment of the discovery motion, the judge went on to describe the order of September 11, 2007 and her thought process at the time she entered the order in a most conclusory fashion. And then, in response to defense counsel's assertion that -- in his experience -- the discovery request was unusual, the judge gave only the following insight into her reasons for allowing discovery into Dr. Noble's financial affairs:

So this [c]ourt was very careful and I have presided over a few trials since being here September 1st. My background was as a civil practitioner for the period of time before I got on the bench. And so it has been not only my experience as a litigator but also my experience as presiding over trials that this information is routine; that it is routinely asked at trial to discredit or to -- to attack the credibility of -- of expert witness[es]. It's obvious. It's so obvious that we even see it on TV. Experts are routinely asked how much income do you derive from this. How many reports a week do you do? Which side do you work for? It is so routine I guess at some point maybe the jurors even -- you know, they just kind of zone out because it is traditional.

We need not presently consider whether inquiries into an expert's finances are commonplace or are so routine as to make the determination of plaintiff's discovery motion "obvious" without further exploration into the interesting contentions presented by both sides. Considering that R. 4:17-4(e) requires only that a litigant provide in discovery "whether compensation has been or is to be paid for the [expert's] report and testimony and, if so, the terms of the compensation" -- which strongly suggests that the discovery obligations imposed by this rule do not encompass the information sought by plaintiff here -- we question whether the disputed information should be viewed as something that is routinely divulged. But, again, we find it premature to consider further the merits of plaintiff's discovery motion. We conclude only that the judge gave no written or oral decision at the time the September 11, 2007 order was entered. And we also conclude that the little insight the judge gave on November 2, 2007 into the reasons for entry of the September 11, 2007 order fails to comport with what R. 1:7-4(a) requires of judges in explaining the reasons for their orders.

Citing the passage of time that has elapsed since the matter was once ready for trial, the parties have requested our exercise of original jurisdiction over plaintiff's discovery motion. We decline the invitation, concluding that the better approach in these circumstances is to obtain a determination of the issues following a full and fair presentation to the trial court. Our power to exercise original jurisdiction pursuant to R. 2:10-5 is normally reserved for emergent matters implicating the public interest, see Karins v. City of Atlantic City, 152 N.J. 532, 540-41 (1998); O'Shea v. N.J. Schools Constr. Corp., 388 N.J. Super. 312, 319 (App. Div. 2006), or when necessary to terminate lengthy, burdensome, and unnecessary additional litigation, and to prevent "perpetual litigation," Accardi v. Accardi, 369 N.J. Super. 75, 91-92 (App. Div. 2004), so long as there is an adequate record for the ruling sought, New Jerseyans for Death Penalty Moratorium v. Dep't of Corr., 370 N.J. Super. 11, 18 (App. Div. 2004), aff'd as modified, 185 N.J. 137 (2005). Although our decision not to exercise original jurisdiction will postpone the resolution of the issues, we anticipate that the delay following today's judgment will be brief.

To summarize, we vacate the order of September 11, 2007, reverse the order of November 2, 2007, and remand for further proceedings in conformity with the letter and spirit of this opinion. Circumstances have made it unnecessary for us to determine whether the future proceedings in this matter should be conducted by a different judge. We do not retain
jurisdiction.

In this regard, we would also observe that our flexible discovery rules, as well as the broad powers possessed by judges to control the presentation of evidence at trial, see N.J.R.E. 611, provide ample authority for the crafting of remedies in this area that could likely avoid an undue infringement of the expert's privacy rights without precluding any need the adversary may at times have to delve into such materials in order to pursue a challenge to the expert's credibility. For example, a trial judge could determine that the expert should first be deposed in this area before it is determined that further inquiry into his or her business or financial affairs is warranted. If the expert testifies at a deposition in such a way as to reveal that the expert is a professional witness or predominantly renders services for one particular side in personal injury matters, then there is little or no need for inquiry into finances or a turnover of 1099s to further prove those facts. However, if the expert appears less than forthcoming about the nature of his or her practice, the judge may permit a turnover of financial information, although perhaps not without first conducting an in camera inspection as to whether the expert's deposition testimony was less than truthful or forthcoming. Or, a trial judge might require the availability of the objectionable materials at the time of trial and, upon a demonstration of cause while the expert is on the witness stand, the judge could permit the turnover of the records for cross-examination. In short, our rules possess sufficient flexibility so as to allow various alternative solutions to the tension between plaintiff's claimed need to know and the expert's claim of privacy short of the invasive relief urged by plaintiff and ATLA in such matters.

Included in the record on appeal is a Lawyers Service receipt indicating the delivery of defense counsel's September 4, 2007 letter to the judge.

In her oral decision, the judge perplexingly indicated that she "did grant this motion for reconsideration." We note that this statement is at odds with the November 2, 2007 order, which memorializes a denial of the motion. It is also at odds with the entire content and tenor of the rest of the judge's oral decision.

Although the auto accident in question occurred six years ago, the complaint was not filed until May 13, 2004, the original discovery period ended June 13, 2004, non-binding arbitration took place on September 16, 2005, and defendant's motion for summary judgment, which was the subject of the earlier appeal, was granted on March 3, 2006. Compare Accardi, supra, 369 N.J. Super. at 92 (noting, as a basis for exercising original jurisdiction, that the motion to reduce child support was filed in November 2000 and, as of April 2003, the trial judge had heard oral argument on six occasions, entered three orders, but still had not conducted a plenary hearing).

Defendant has also argued that our mandate in the earlier appeal did not authorize or permit plaintiff's discovery motion and also that a fair interpretation of our mandate rendered plaintiff's discovery motion untimely. In the same spirit that infuses our other rulings today, we reject these contentions.

(continued)

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A-2093-07T3

June 27, 2008