CATHY MELITSKI v. STATE OF NEW JERSEY DIVISION OF LAW

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE APPROVAL

OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3848-07T1

CATHY MELITSKI,

Plaintiff-Appellant,

v.

THE STATE OF NEW JERSEY,

DIVISION OF LAW,

Defendant-Respondent.

 

Submitted January 20, 2009 - Decided

Before Judges Carchman, R. B. Coleman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1586-06.

Castronovo & McKinney, L.L.C., attorneys for appellant (Paul Castronovo, on the brief).

Anne Milgram, Attorney General of New Jersey, for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Eric Snyder and Jacqueline Augustine, Deputy Attorneys General, on the brief).

PER CURIAM

In this disability discrimination case, plaintiff Cathy Melitski appeals from the order of March 17, 2008, dismissing her complaint with prejudice after a jury's unanimous no-cause verdict in favor of defendant State of New Jersey, Division of Law. On appeal, plaintiff contends that the trial judge misapplied N.J.R.E. 808 by redacting doctors' notes she sought to admit into evidence; tainted the jury by expressing her opinion that defendant did not fail to accommodate her disability; denied her a fair trial by correcting counsel's description of her disability in his opening statement; denied her the right to ask leading questions of a hostile witness; improperly refused to admit the hostile witness's authenticated notes; and improperly dismissed her punitive damages claim. We reject these contentions and affirm.

On August 3, 2004, plaintiff, a Deputy Attorney General with the Department of Law and Public Safety, Division of Law, was struck by a car while walking to work. She sustained injuries to her neck, requiring an anterior cervical diskectomy and fusion and resulting in limited neck mobility and pain exacerbated by prolonged sitting. As a result of her injuries, plaintiff took an authorized leave of absence beginning on or about October 15, 2004.

Plaintiff returned to work on November 28, 2005. On December 22, 2005, she submitted an American with Disabilities Act (ADA) request for accommodation. She requested a part-time work schedule with the hours 10:00 a.m. to 1:30 p.m. to avoid sitting in traffic. She also requested a Bodybilt ergonomic chair recommended by her doctors. She later requested a stand up desk.

Defendant adjusted plaintiff's work schedule and provided a stand-up desk and two non-Bodybilt ergonomic chairs. However, plaintiff insisted that the Bodybilt chair was the only appropriate accommodation for her disability. She also claimed that defendant violated her part-time work schedule by making her work longer hours. As a result, on February 21, 2006, plaintiff filed a complaint, alleging a failure to accommodate her disability in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.

Defendant provided the Bodybilt chair on or about June 26, 2006. Plaintiff claimed that the delay in providing this accommodation was unreasonable and constituted a violation of the LAD. Defendant countered that the proffered accommodations, the two ergonomic chairs, were reasonable and that it acted in good faith to resolve plaintiff's ADA accommodation request.

At trial, plaintiff had to establish, among other things, that the Bodybilt chair was the only accommodation for her disability and, thus, defendant had to provide it. To accomplish this goal, plaintiff sought to admit her doctors' notes, which contained recommendations that the Bodybuilt chair would accommodate her disability. Defendant objected on hearsay grounds.

The trial judge concluded that "[t]he only purpose for which the notes can be considered in the absence of the testimony of the author is to establish that the plaintiff did notify the defendants of her request for a reasonable accommodation in the form of . . . an ergonomic chair." The judge barred use of the notes to establish that the Bodybilt chair was the only chair that would accommodate plaintiff's disability. The judge admitted the documents with redactions of the hearsay references to the doctors' recommendations.

Plaintiff argues that the recommendations were not hearsay. Alternatively, she argues that the recommendations are trustworthy under N.J.R.E. 808 because they were written before the litigation commenced. She also relies on Bonitsis v. N.J. Inst. of Tech., 363 N.J. Super. 505 (App. Div. 2003), certif. denied, 180 N.J. 456 (2004).

"As a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion." Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991); see also Purdy v. Nationwide Mutual Insurance Co., 184 N.J. Super. 123, 130 (App. Div. 1982). We grant substantial deference to the trial judge's discretion on evidentiary rulings. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Applying these standards, we continue our analysis.

"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Hearsay is inadmissible unless an exception applies. N.J.R.E. 802. Here, plaintiff intended to use the doctors' recommendations to prove that the Bodybilt chair was the only chair that would accommodate her disability. The doctors' recommendations, therefore, are statements offered to prove the truth of the matter asserted. Accordingly, they constitute inadmissible hearsay, which the trial judge properly redacted.

N.J.R.E. 808 does not change this result. "Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion . . . tend to establish its trustworthiness." N.J.R.E. 808 (emphasis added). Because the doctors' recommendations are not admissible hearsay statements, N.J.R.E. 808 does not apply.

Further, plaintiff misinterprets Bonitsis, supra. There, the plaintiff alleged that the defendants failed to accommodate his disability. 363 N.J. Super. at 511. The defendants claimed that the plaintiff never submitted documentation requesting an accommodation. Id. at 525. At trial, the plaintiff offered his treating physician's letters to prove that he had requested an accommodation. Id. at 511, 524. We permitted such use, finding that the plaintiff did not offer the letters to show the nature and seriousness of his medical disability, but rather, to show that he had requested an accommodation and documented his request. Id. at 525.

There was no dispute here that plaintiff requested an accommodation and documented her request. The dispute concerned whether only the Bodybilt chair would accommodate her disability and whether defendant's failure to timely provide it constituted a failure to accommodate. The doctors' recommendations directly addressed these central issues, and thus, constituted inadmissible hearsay. There was no abuse of discretion in the redaction of the recommendations.

Plaintiff next contends that the trial judge tainted the jury by "proclaim[ing] her opinion in front of the jury that the [d]efendant did not deny [p]laintiff any accommodation." Plaintiff points to the following exchange during her direct examination:

[PLAINTIFF'S COUNSEL]: Just limit it to your . . . emotional . . .

[PLAINTIFF]: Sorry.

[PLAINTIFF'S COUNSEL]: . . . issues with the denial of the accommodations and how it harmed your relationship with your parents.

[DEFENDANT'S COUNSEL]: Objection to the form of the question, Your Honor.

[THE COURT]: Objection sustained . . .

[PLAINTIFF'S COUNSEL]: I'm just trying to make it . . .

[THE COURT]: . . . as to the use of the characterization as denial, of the word denial.

[PLAINTIFF'S COUNSEL]: I'm just trying to conform to the ruling, Your Honor.

[THE COURT]: Denial. Objection sustained as to the use of the word denial, which is not the allegation made by plaintiff.

[PLAINTIFF'S COUNSEL]: That's our case, Your Honor, there is no . . .

[THE COURT]: Your case, your argument has been before the jury that the State failed to timely make a reasonable accommodation.

[PLAINTIFF'S COUNSEL]: That's regarding the chair, Your Honor. There's also the job, the part-time schedule.

[DEFENDANT'S COUNSEL]: Your Honor, plaintiff has testified that she was given the part-time schedule. There wasn't a denial. I would again renew my objection to the form of the question using the word
. . .

[THE COURT]: Objection sustained as to denial.

[PLAINTIFF'S COUNSEL]: May I be heard, Your Honor? You know, I think . . .

[THE COURT]: Objection sustained . . .

[PLAINTIFF'S COUNSEL]: Your Honor . . .

[THE COURT]: . . . as to denial and there's no further argument in front of this jury.

[PLAINTIFF'S COUNSEL]: Can I make my record out of the [jury's] presence?

After a further exchange out of the jury's presence, the judge vacated her ruling and permitted plaintiff to use the word "denial" when testifying about her frustration over the part-time accommodation. Plaintiff's counsel did not request a curative instruction. The word "denial" was then used during plaintiff's remaining testimony about the part-time accommodation.

A "judge must conduct the trial in a fair and impartial manner, without making remarks that might prejudice a party or which are calculated to influence the minds of the jury." Cestero v. Ferrara, 110 N.J. Super. 264, 273 (App. Div. 1970), aff'd 57 N.J. 497 (1971). "[T]he judge occupies a high position" and is a "symbol of experience, wisdom, and impartiality." State v. Tilghman, 385 N.J. Super 45, 59 (App. Div.) (citations omitted), certif. granted and remanded on other grounds, 188 N.J. 269 (2006). Consequently, "the capacity of a judge to influence or affect a jury, even subtly and indirectly, is great." Ibid. at 26 (citing State v. Vergilio, 261 N.J. Super. 648, 657-58 (App. Div.), certif. denied, 133 N.J. 443 (1993)). "[T]he jury can be easily influenced by the slightest suggestion coming from the court." Ibid. Nevertheless, because "a trial court has wide discretion in controlling the courtroom and the court proceedings," any "[a]lleged misconduct by a trial judge must be reviewed within the context of the entire record in order to determine whether it had prejudicial impact." D.G. ex rel. J.G. v. North Plainfield Bd. of Educ., 400 N.J. Super. 1, 25-26 (App. Div.) (citations omitted), certif. denied, 196 N.J. 346 (2008).

Based on our review of the record, we are satisfied that no misconduct occurred. The judge never opined that defendant did not deny the part-time accommodation, she permitted plaintiff to use the word "denial" in her testimony about the part-time accommodation, and her ruling was correct as to the Bodybilt chair.

Plaintiff next contends that the trial judge denied her a fair trial by correcting counsel's description of her disability in his opening statement. We disagree.

The nature of plaintiff's disability was never at issue. In his opening statement, plaintiff's counsel incorrectly described plaintiff's disability as "cervical spinal fusion." Recognizing that "cervical spinal fusion" was a medical procedure, not a medical condition, the judge excused the jury at the conclusion of the opening statement and questioned counsel on the nature of plaintiff's disability. Counsel then offered to refer to plaintiff's disability as "neck injuries." Defense counsel agreed.

At the end of defense counsel's opening statement, the judge instructed the jury that:

[I]n order to make certain that the testimony and the evidence that is adduced at trial is received by you in the context agreed by both sides, please be advised that the nature of the plaintiff's condition was referred to as cervical spine fusion which is a procedure, not the condition for which the plaintiff is saying that the defendant did not timely make . . . a reasonable accommodation.

The stated condition which falls under the Law Against Discrimination that the plaintiff alleges that the defendant failed to timely make a reasonable accommodation for are cervical injuries to her neck. She has injuries to her neck.

Because plaintiff's counsel did not object to this instruction, we are guided by a plain error standard of review. See R. 1:7-2 and R. 2:10-2. "[T]he question of whether plain error occurred depends on whether the error was clearly capable of producing an unjust result. Relief under the plain error rule, [Rule] 2:10-2, at least in civil cases, is discretionary and 'should be sparingly employed.'" Baker v. Nat'l State Bank, 161 N.J. 220, 226 (1998) (citing Ford v. Reichert, 23 N.J. 429, 435 (1957)).

Based upon our review of the record, we are satisfied that the judge properly corrected counsel's mischaracterization of plaintiff's disability. We are also satisfied that the instruction was in accord with counsel's agreement to refer to plaintiff's disability as "neck injuries" and constituted no error, let alone plain error.

Plaintiff next contends that the judge improperly denied her the right to ask leading questions of an alleged hostile witness, Ruth Burkley, the Division's Americans with Disabilities Act coordinator, who testified during plaintiff's case-in-chief. This contention lacks merit.

"When a party calls an adverse party or a witness identified with an adverse party, or when a witness demonstrates hostility or unresponsiveness, interrogation may be by leading questions, subject to the discretion of the court." N.J.R.E. 611(c). "[A]ctual antagonism between the examiner and witness is the cornerstone for permission under [Rule 611(c)] to lead." Biunno, Current N.J. Rules of Evidence, Comment 8 on N.J.R.E. 611 (2008). See also Lerman v. Lerman, 245 N.J. Super. 312, 313-14 (Ch. Div. 1990). "The control of examination, both direct and cross, resides with the [trial judge]" whose "discretion . . . is a broad one [which] we will not interfere with . . . absent a clear abuse of discretion." Cestero, supra, 110 N.J. Super. at 273 (citations omitted).

Applying these standards, we discern no abuse of discretion. Plaintiff never asked to declare Burkley a hostile or adverse witness. More importantly, Burkley expressed no hostility or unresponsiveness during her testimony. There was no reason to declare her a hostile witness. Accordingly, the judge properly denied leading questions on Burkley's direct examination.

Plaintiff also contends that the judge improperly refused to admit all of Burkley's authenticated notes concerning this matter. This contention also lacks merit.

During Burkley's testimony, plaintiff's counsel asked her about several handwritten notes she took at a meeting about this matter. After Burkley authenticated the notes, counsel only queried her about one page. At the conclusion of Burkely's testimony, counsel sought to admit all of the notes because Burkley had authenticated them. The judge excluded the notes to which Burkely did not testify, finding that they contained possible hearsay and were not probative of any issues before the jury.

In general, "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403. "The trial court, because of its intimate knowledge of the case, is in the best position to engage in this balancing process." State v. Ramseur, 106 N.J. 123, 266 (1987). Again, we will only reverse upon finding an abuse of discretion.

We discern no abuse of discretion in the judge's ruling. We agree that admitting notes about which no testimony occurred would have little or no probative value. The notes would also confuse or mislead the jury, as Burkley gave no explanation of their content.

Plaintiff's final contention that the judge erred in dismissing her punitive damage claim on defendant's motion lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we add this brief comment.

Where, as here, a defendant so requests, "the trial court must bifurcate trial of punitive damages issues from trial of underlying liability and compensatory damages, with the punitive damages issues tried at the second stage of the bifurcated trial. Evidence relevant only to punitive damages is inadmissible in the liability and compensatory damages phase." See Model Jury Charge (Civil), 8.61 (citing N.J.S.A. 2A:15-5.13). "Punitive damages may be awarded only if compensatory damages have been awarded." Ibid. The trial of the underlying liability in this case resulted in a no-cause verdict.

 
Affirmed.

42 U.S.C.A. 12101-12300.

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A-3848-07T1

May 13, 2009