PREMIER HEALTH CENTER, P.C v. SHERELYN Y. JOHNSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0437-09T30437-09T3

PREMIER HEALTH CENTER, P.C.,

Plaintiff-Respondent,

v.

SHERELYN Y. JOHNSON,

Defendant-Appellant.

__________________________________

 

Submitted May 4, 2010 - Decided

Before Judges Carchman and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-037133-08.

Yvette W. Lewis-Williams, attorney for appellant.

Peter Y. Lee, attorney for respondent.

PER CURIAM

Defendant Sherelyn Johnson appeals from a judgment after a bench trial in the Special Civil Part in favor of plaintiff Premier Health Center, P.C., in the amount of $7,999.21. Because the trial court relied on an exhibit that plaintiff had not provided in discovery and did not authenticate at trial, we reverse and remand for a new trial.

Plaintiff sued defendant for unpaid chiropractic and physical therapy fees. Before trial, defendant propounded interrogatories to plaintiff, which included a request for all documents relevant to plaintiff's claims. In response, plaintiff referred to documents attached to its unsuccessful motion for summary judgment but did not provide any additional documents.

At trial, plaintiff's case was presented through very brief testimony of its billing manager. She testified that plaintiff's patient ledger for defendant showed visits for treatment from May 9 through June 22, 2007. Plaintiff billed a total of $9,316.69 for its services. According to the patient ledger, which defendant did not challenge and the court later stated was in evidence, plaintiff received $1,317.48 on its bills, leaving a balance due from defendant of $7,999.21.

Defendant testified that she sought the services of plaintiff but was concerned that plaintiff was not in her medical insurer's network of providers. She spoke to Dr. Kim, who was apparently a principal of plaintiff, about her concerns regarding payment of bills. Dr. Kim told her plaintiff would submit claims to her medical insurance carrier, Regence Blue Cross Blue Shield (BCBS), and accept whatever amounts the carrier paid on the bills. Defendant understood that she would personally be required to pay only the co-payment amounts applicable to in-network service. According to defendant, she spoke to Dr. Kim on three separate occasions about the subject of payment, and he assured her each time that plaintiff would make insurance claims on her behalf and accept the amounts approved by BCBS.

Defendant testified that she endorsed over to plaintiff every insurance check she received from BCBS and either mailed or personally delivered the checks. After plaintiff sent her a collection letter for the balance due on her bills, defendant checked with BCBS and determined that she had transferred each payment from BCBS to plaintiff as she was obligated to do. She gave that information to plaintiff but was later sued for the balance on her bills. Defendant surmised that if payments were not received by plaintiff, perhaps plaintiff had not submitted claims to BCBS as it said it would.

To resolve the dispute about who was responsible for the balance due, the court relied, over defendant's objection, on plaintiff's exhibits marked as P-1 and P-3. Plaintiff had not disclosed these exhibits in response to the interrogatories from defendant, and they had not been attached to plaintiff's motion for summary judgment. Upon defendant objecting to admission of these documents because of the discovery violation, plaintiff's attorney responded he had first received the exhibits from his client on the day before trial. The court remarked that counsel's response did not excuse the discovery violation. Nevertheless, the court admitted exhibits P-1 and P-3 in evidence and relied almost exclusively on P-1, a document entitled "Office Policy Regarding: Insurance Checks," in reaching its decision contrary to defendant's testimony about the terms of the parties' agreement.

In ruling on defendant's objection to exhibit P-1, the court said:

That was signed, allegedly well, apparently, by the defendant, who has not yet testified. But I don't see if the defendant didn't . . . sign this, she can tell me that and whether or not I consider it is another question. If she did in fact sign it, she can't be prejudiced by my consideration of it, since she was aware of it.

Exhibit P-2 was a set of claim forms, which the court ruled would not be admitted in evidence. Exhibit P-3 consisted of insurance checks made payable to defendant and endorsed to plaintiff. The court said that the checks also bear "a signature that purports to be [defendant's]." Similarly to exhibit P-1, the court ruled that defendant could not be prejudiced by admission of the checks unless she testified that they did not contain her signature.

In reaching its decision on the merits after completion of testimony, the court read the contents of P-1 into the record. The document stated that plaintiff would submit insurance claims as a courtesy to the patient. The relevant provision of that document pertaining to defendant's liability stated: "Please note: If payment due to our office by you through Horizon Blue Cross Blue Shield is not received, you will be held responsible for the total balance due." Although no testimony had been offered by either party regarding P-1, the court stated that defendant had signed it and ultimately accepted it as the contract of the parties.

We generally consider a trial court's evidentiary rulings under the abuse of discretion standard of review. See Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000); Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991); Purdy v. Nationwide Mut. Ins. Co., 184 N.J. Super. 123, 130 (App. Div. 1982). However, abuse of discretion includes a ruling that is contrary to law. See Payton v. N.J. Tpk. Auth., 148 N.J. 524, 559 (1997); Alves v. Rosenberg, 400 N.J. Super. 553, 562-63 (App. Div. 2008); Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005); Cosme v. Bor. of E. Newark Twp. Comm., 304 N.J. Super. 191, 202 (App. Div. 1997), certif. denied, 156 N.J. 381 (1998).

The trial court's evidentiary rulings were legally erroneous because they did not require that plaintiff authenticate the exhibits it offered in evidence, and also because the court did not correctly analyze defendant's discovery objection.

N.J.R.E. 901 states: "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims." Here, plaintiff offered P-1 in evidence without any testimony or other evidence establishing its authenticity. Under N.J.R.E. 901, plaintiff was required to lay a foundation showing that the document was what it purported to be, an agreement signed by defendant making her personally liable for the balance on her bills not paid by BCBS. Plaintiff's sole witness did not testify about P-1. Nor did plaintiff present any other evidence, such as an admission of defendant obtained in discovery or at trial, to establish that defendant had signed P-1.

Despite purporting to bear defendant's signature, P-1 was not a self-authenticating document. The court said it would admit the document in evidence subject to defendant denying the signature, and in that event, determine whether the court would consider the document. But nothing in N.J.R.E. 902, "Self-Authentication," states that a document is considered authenticated and admissible simply because it appears to contain the adverse party's signature. Extrinsic evidence of authenticity is still required to establish the signature that purports to be that of an adverse party, and the admissibility of such a document. See Robertson v. Burstein, 105 N.J.L. 375, 378 (E. & A. 1929); see also Van Syckel v. Egg Harbor Coal & Lumber Co., 109 N.J.L. 604, 605 (E. & A. 1932) ("At common law one, who sues upon a written contract, is obliged in the absence of admission to prove the signature of the defendant before the instrument can be received in evidence.").

During her testimony, defendant was not asked about P-1. Plaintiff's attorney could have asked her to identify her signature, but he did not. Defendant herself did not have the burden of disproving the authenticity of the document to avoid its admission as evidence against her. The party offering evidence has the burden of laying a proper foundation for its admission. State v. Mosner, 407 N.J. Super. 40, 62 (App. Div. 2009).

Also, in addressing defendant's discovery objection, the trial court determined that defendant could not be prejudiced by plaintiff's failure to produce the document in discovery if, in fact, it had been signed by defendant. But the discovery rules do not relieve a party of its obligation to produce documents that were written or signed by the other party. The trial court recognized that plaintiff had violated its discovery obligation by failing to disclose P-1 in response to defendant's interrogatories.

Where a discovery objection is made at trial, the court should analyze the objection by first determining whether a discovery violation actually occurred, second whether the violation is potentially prejudicial to the aggrieved party, and third what remedy is appropriate if in fact the aggrieved party has or may be prejudiced. Here, the trial court determined that a discovery violation occurred but then concluded that defendant's signature on the document meant she would not be prejudiced by its use at trial.

"Discovery rules are designed to further 'the public policies of expeditious handling of cases, avoiding stale evidence, and providing uniformity, predictability and security in the conduct of litigation.'" Cunningham v. Rummel, 223 N.J. Super. 15, 18 (App. Div. 1988) (quoting Zaccardi v. Becker, 88 N.J. 245, 252 (1982)). To accomplish these objectives, courts have the "inherent discretionary power to impose sanctions for failure to make discovery, subject only to the requirement that they be just and reasonable in the circumstances." Calabrese v. Trenton State College, 162 N.J. Super. 145, 151-52 (App. Div. 1978), aff'd, 82 N.J. 321 (1980).

Even if defendant did not dispute her signature on P-1, she was entitled to have pretrial disclosure of plaintiff's intent to use that document so that she could prepare adequately for trial. The discovery rules are "designed to eliminate, as far as possible, concealment and surprise in the trial of lawsuits." Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 512 (1995) (quoting Oliviero v. Porter Hayden Co., 241 N.J. Super. 381, 387 (App. Div. 1990)). The fact that one admits prior knowledge of a document does not mean that its surprise use at trial is not prejudicial. Defendant may not have received a copy of P-1 at the time it was executed, or she may have forgotten that she had signed such a document in plaintiff's office some two years before this litigation. It would have been important to defendant's preparation for trial to know that such a document existed and plaintiff intended to rely on it to prove her liability.

Without prior knowledge of the document, defendant's attorney could not have consulted her client about it and prepared an explanation or response. Also, if defense counsel had been made aware that P-1 would be offered to refute her client's testimony, she may have altered her defenses and presentation. For example, she may have chosen to call Dr. Kim to testify about his alleged oral promises to defendant that the insurance payments and defendant's co-payments would be accepted as payment in full. In its decision, the trial court gave no credence to defendant's testimony about the alleged oral promises because the court relied on the contradictory provision of P-1. Because of plaintiff's discovery violation, defendant was not given adequate notice of plaintiff's evidence at trial and was at a disadvantage in proving that plaintiff's oral promises should comprise the parties' agreement rather than the statement of personal responsibility contained in P-1.

The trial court could have considered excluding P-1 from evidence or whether a lesser remedy might cure the prejudice, such as adjournment of the trial to allow defendant to respond to the document, or even a mistrial. See, e.g., Oliviero, supra, 241 N.J. Super. at 384. We do not decide here what remedy would have been appropriate, or whether P-1 may be admitted in evidence on retrial if the prejudice has now been cured.

Because of plaintiff's discovery violation and the absence of foundation evidence authenticating P-1 for admission, and because P-1 was crucial to the court's decision, defendant is entitled to a new trial.

Reversed and remanded for a new trial.

 

The total amount billed averages to more than $490 for each of defendant's nineteen therapy sessions during the six-week period of services. Plaintiff did not present testimony about the nature of the services provided.

We focus on P-1 because the trial court relied on it in reaching its decision. As to P-3, there was no dispute that defendant had endorsed insurance checks to plaintiff.

(continued)

(continued)

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A-0437-09T3

July 2, 2010