IN THE MATTER SUSPENSION OR REVOCATION LICENSE OF LEONARD JOACHIM, M.D., LICENSE NO. MA 47527, TO PRACTICE MEDICINE AND SURGERY IN THE STATE OF NEW JERSEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4723-06T14723-06T1

IN THE MATTER OF THE

SUSPENSION OR REVOCATION

OF THE LICENSE OF

LEONARD JOACHIM, M.D.,

LICENSE NO. MA 47527,

TO PRACTICE MEDICINE AND

SURGERY IN THE STATE OF

NEW JERSEY

_________________________________

 

Argued September 4, 2007 - Decided

 

Before Judges Stern, Sabatino and Baxter.

On appeal from the Department of Law & Public Safety, Division of Consumer Affairs, State Board of Medical Examiners, Docket No. BDS 7297-03.

Steven I. Kern argued the cause for appellant, Leonard Joachim, M.D. (Kern, Augustine, Conroy & Schoppmann, P.C., attorneys; Mr. Kern, of counsel and on the brief; R. Bruce Crelin, on the brief).

Doreen A. Hafner, Deputy Attorney General, argued the cause for respondent, State Board of Medical Examiners (Anne Milgram, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Hafner, on the brief).

PER CURIAM

Following a hearing before an administrative law judge ("ALJ"), the State Board of Medical Examiners ("the Board") suspended the medical license of appellant, Leonard Joachim, M.D., for a period of at least six months. The Board's discipline was based upon the ALJ's finding that appellant had improper sexual contact with a female patient in his office in 2003. In connection with the hearing's liability phase, the ALJ admitted, over appellant's objection, proof of sexual misconduct that he committed with a patient in 1992 and allegedly committed with a second patient that same year. The ALJ ruled that appellant's prior bad acts were admissible under N.J.R.E. 404(b) as proof of opportunity and motive.

Because the 1992 bad acts were improperly admitted under the cited exceptions to Rule 404(b), and because we cannot be confident that their prejudicial impact in this case--one which involves very substantial credibility issues--was inconsequential, we conditionally vacate appellant's suspension. The matter is accordingly remanded for a new hearing before the Office of Administrative Law ("OAL"), at which the prior bad acts shall be excluded from the liability proofs.

I.

We summarize for purposes of our review the proofs. The Board's contentions revolve around appellant's interactions with an adult female patient, D.S.

Appellant is a Board-certified New Jersey physician who practices internal medicine, with a specialty in pulmonary medicine. He has been licensed in this state since 1986. At the times relevant to this case, appellant worked for Sall/Myers Medical Associates ("Sall/Myers"), treating patients at its offices in Paterson, Passaic, Irvington, and Newark. While at the Passaic office, appellant routinely used the same examining room there. He was forty-eight years old at the time of the events in question. D.S. is a married woman and an immigrant from Poland. Her native language is Polish. At the time she became a patient of appellant in 2003, D.S. was twenty-four years old.

On January 2, 2003, D.S. was injured in a motor vehicle accident. Her personal injury attorney, Kenneth Ryan, suggested that she seek treatment at the Sall/Myers office in Passaic. About two weeks later, on January 15, 2003, D.S. went to that office, where she was registered as a patient and was seen by appellant for the first time. She was examined by appellant again on March 7, 2003.

During these two initial visits, the dates of which are agreed upon by the parties, D.S. thought that appellant acted in a "normal" fashion. She was prescribed physical therapy, which she attended in the same building as appellant's Passaic office. During her follow-up visit on March 7, D.S. told appellant she was feeling nervous and had anxiety problems. Appellant referred her to a psychiatrist and also to a neurologist, but she was not prescribed anything by those two doctors.

Prior to her motor vehicle accident, D.S. had been employed cleaning supermarkets at night, but she lost that job because of her injuries. D.S. did not apply for disability or unemployment benefits. At the time of her initial visit at Sall/Myers in January 2003, she was out of work and in school learning English. In February 2003, D.S. started working at a tanning salon. She was employed there for approximately four months through May 2003.

The events of the third encounter between appellant and D.S. are hotly in dispute. Additionally, the details of that encounter have varied in D.S.'s ensuing descriptions of what happened. In essence, D.S. contends that appellant inappropriately caused her to touch him in a sexually gratifying manner during the course of her third visit to his office, and thereafter pursued her over the telephone and by driving past her residence.

D.S. first reported the alleged inappropriate encounter to the local police on April 5, 2003. She made that report at the urging of a friend, A.A. In that initial police report, D.S. stated that the incident with appellant in his office had occurred on March 14, 2003. She subsequently related the incident to her then-employer, Nicholas Nasarenko, and also to her attorney, Ryan.

On May 7, 2003, D.S. returned to the police station and brought a formal complaint against appellant. In this second account, D.S. stated that the office visit with appellant in which the inappropriate conduct occurred was either on March 23 or March 24, 2003. She described the events as follows:

I came there for my visit. [A] nurse took me to an examining room and gave me the gown and I put the gown [on], then the nurse left and [appellant] come in. He say I got to take my bra off, I leave my underwear. Then he tell me to lay down. I lay down and he check my breasts, my stomach, my back with his hands. Then he say he wants to check my blood pressure. When I looked down, he put the things for blood pressure on my right arm, and he say my blood pressure is high. He tell me he want to check it on the other hand, and he tell me to lay on the other side and he put the things for blood pressure on my arm. Then he pushed my hand to his penis, and I felt he penis is hard. After the exam was over, he asked me if I can give him directions to my home so he can check me at my house. I don't want to give him the direction, he gave me some prescription, some medication. When the visit is done, he come to me and kiss me in my mouth and hug me.

D.S. told the police that appellant thereafter called her twice and drove by her house:

The doctor called me one day like 3:15 PM, and asked me if he can come to my home to check me. First, he asked me how I feel and I say I'm alright. Then he say he wants to come and check me at my home. I say I'm going for therapy today, and I say how late will you be in your office, and he say till 6:00. So I leave my home at 5:25 and I see the doctor driving in front of my home. Then I got message from him like five minutes after I see him. He said Hi D it's Dr. Joachim. Please call me back. Then I'm going to therapy, and I told another doctor, Dr. Mike and Dr. JC that I see Dr. Joachim in front of my home. I asked them if Dr. Joachim worked today, and they say he worked, but the morning hours.

D.S. stated to the police that these calls, and appellant's unexpected appearance by her house, took place on a Friday in April 2003. She described the car that drove by her house that day as "a regular car" with "[four] doors" and "[d]ark blue or black" in color.

As a result of D.S.'s reports to the police, the Passaic County Prosecutor's Office convened a grand jury investigation into the matter. However, D.S. did not appear to testify, and the grand jury issued a "no bill." D.S. did not bring a civil action against appellant. However, her allegations of misconduct came to the attention of the Board and the Attorney General.

Subsequently, on June 30, 2003, the Attorney General filed with the Board an administrative complaint and an order to show cause against appellant, seeking to suspend his medical license immediately because of his alleged improper conduct with D.S. Appellant vigorously denied the allegations of wrongdoing. Following negotiations with appellant and his counsel, the Attorney General entered into an interim consent agreement, permitting appellant to continue to practice on the condition that he only see female patients in the presence of a female chaperone approved by the Board. The contested matter was then referred to the OAL for a hearing before an ALJ.

During the course of discovery before the OAL hearings, appellant served upon the Attorney General a request for additional information. That request produced a written response by the Attorney General in December 2004 amplifying, and, to some extent, modifying, D.S.'s factual allegations. The source of this additional information, as stipulated by the Attorney General, was D.S., who had been interviewed by a Deputy Attorney General prosecuting this matter. In particular, the Attorney General noted that D.S. had come to the Sall/Myers office on her third visit for the purpose of documenting bruises. D.S. later testified at trial that the bruises had been inflicted upon her by her then-boyfriend. D.S. testified that she had not told the police about this incident because she was still "in love" with her boyfriend at that time and did not want to get him in trouble.

Additionally, the Attorney General's discovery response asserted that D.S. had been "instructed [on the day of appellant's alleged improper touching] by a female employee of Sall/Myers to remove all of her clothing, including her bra but not her underwear, and put on a gown." According to the discovery response, this procedure contrasted with the two prior visits, in which staff had instructed D.S. to remove her clothing and put on a gown, but leave both her bra and underwear on.

The matter was tried before the ALJ over the course of four intermittent hearing dates in October 2005 and June 2006. At trial, D.S. offered the following version of the facts, which varied in several respects from her earlier accounts.

D.S. testified at trial that the improper touching occurred at the Sall/Myers office on March 26, 2003. She stated that she came in for physical therapy that day. She had bruises on her body in various places. After the physical therapy session ended, D.S. allegedly told a nurse that the bruises had been inflicted by her then-boyfriend. The nurse asked D.S. to put on a gown over her bra and underwear, and then took photographs of the bruises. After the pictures were taken, appellant allegedly entered the room and closed the door to examine her. He instructed D.S. to take off her bra. He then examined her entire body, including allegedly touching her breasts under the gown without wearing any gloves. Appellant then checked her blood pressure on one of her arms. Finding that the pressure was a bit high, he decided to check it on her other arm.

According to D.S., while appellant was taking her blood pressure, "[h]e pushed [her] hand to his penis." Moving her hand away, D.S. noticed that appellant's penis was hard. Appellant told her to get dressed. He then asked for directions to her house. She refused to give them. As she was leaving, appellant allegedly "hugged [her] and kissed [her] mouth." With respect to her bra, D.S. testified at trial that she was "sure it was [appellant] who [told her] to take the bra [off]."

Afterwards, D.S. left the room in what she described as a state of "shock." She only mentioned to the nurses that appellant had asked for directions to her house, which they agreed she did not need to give. They gave her the Polaroid pictures, which each had the date March 26 handwritten on the bottom. D.S. testified that she was never seen by another doctor at Sall/Myers after that incident, but she briefly returned to the office for physical therapy.

With respect to appellant's attempts to contact her outside of the office, D.S. testified that she left work at the tanning salon at around 3:00 p.m. on Friday, April 4, 2003. She then got a call from appellant around 3:15 p.m. when she arrived home. Appellant stated that he "would like to come and check [her] at [her] house." D.S. responded that she would be at the office later for physical therapy anyway, and that he could check her then. Appellant replied that he would be working there until 6:00 p.m.

Upon getting into her car to drive to physical therapy at around 5:00 p.m., D.S. "saw next to [her] car[,] in front of [her,] [appellant] in another car." His car "was next to [her] car on the other side of the road." D.S. recalled that the car was either dark blue or black and was moving. She noted that, as she was leaving her parking spot, appellant's car was heading in the other direction. The street lights were already on.

D.S. testified that appellant then left a voice mail message on her cell phone and requested that she call him back. She did not do so. Instead, she proceeded to her physical therapy appointment at Sall/Myers. While at that session, D.S. allegedly verified from the physical therapy staff that appellant was not then on duty, but rather that he had seen patients earlier that morning. D.S. did not return again to Sall/Myers.

As to the discrepancies in the dates for the improper touching she had provided to the police, D.S. explained at trial that it was not until she had looked at the date notations on the Polaroid photographs that she realized that March 26, 2003 was the correct date. D.S. contended that she had discarded the photographs "a couple of months" before the trial. D.S. also acknowledged that the prosecuting Deputy Attorney General had requested to see the photographs before trial but the photos were never shown to her.

In his own testimony, appellant emphatically denied any improper conduct with D.S. in his office and likewise denied ever driving to her home. He testified that he first met D.S. on January 15, 2003, and treated her in Sall/Myers's Passaic office. As was the routine, D.S. was wearing street clothes on that first appointment and also when she returned a second time. Appellant stated that he regularly used room number 3 at the Passaic facility because it is closest to the secretary's desk. The door is routinely closed during examinations. After the examination is completed and the patient leaves, appellant customarily returns to the exam room to dictate his notes for the patient's chart. Appellant recalled that, based upon his examination of D.S., he had written notes stating that D.S. could return to school by February 3 and to work by February 10.

According to appellant, the last day on which he saw D.S. was Wednesday, April 2, 2003. That April 2 date is consistent with appellant's dictated report on D.S.'s chart. As appellant recalled it, on that last visit, D.S. was in the examination room when appellant walked in with Luz Marrero, the Passaic office manager. D.S. was wearing a gown, with the back open. With some reluctance, D.S. told him that her boyfriend had beat her up a few days earlier. Appellant then examined her, finding bruises on her face, neck, shoulder, hips, and lower extremities. Appellant insisted that he never touched her breasts, buttocks, pubic area, nor did he expose any of these areas. He also contends that he did not take her blood pressure or vital signs that day.

After examining D.S., appellant contends that he left the examination room with Marrero. Soon thereafter, he returned to the room to dictate. At that point, D.S. was alone in the room, and getting dressed. According to appellant, the door was then open. Appellant waited for her to finish dressing so that he could dictate. This allegedly took less than a minute. Marrero then came back and left the room with D.S.

Appellant first learned about D.S.'s complaint of wrongdoing when Sall/Myers's president asked him about the matter several days later. Appellant denied placing D.S.'s hands on his penis or kissing her. Appellant did acknowledge that there was a blood pressure cuff in each examining room, but testified that normally the medical assistant takes the patient's blood pressure and other vital signs.

Appellant also denied ever going to D.S.'s house. He contended that he does not know where her house is, and that he never asked her for directions to get to it. At the time of these alleged incidents, appellant drove a red Suburban and his wife drove a light blue Mercedes station wagon. He never drove a dark blue or black car. Appellant acknowledges that, after the April 2 appointment, he may have called D.S. from his cell phone to check on her status while he was traveling between offices. He maintained that he usually does not keep notes of such patient calls.

In addition to D.S. and appellant, several other witnesses testified before the ALJ. To corroborate facets of D.S.'s account, the Attorney General called her personal injury attorney, Ryan, and her former employer, Nasarenko.

Ryan verified that as of January 2003, he had been representing D.S. in her automobile negligence matter. He also confirmed that he had referred D.S. to Sall/Myers to be treated and evaluated for her accident injuries. Ryan recalled that D.S. called him, upset and crying, on Monday, April 7, 2003. She told him in that conversation that on March 26, 2003, appellant had tried to kiss her and had forced her hand to his crotch. She also told Ryan that appellant had telephoned her on Friday, April 4, 2003, and that on that day she had seen appellant in an automobile parked outside of her home.

After receiving D.S.'s call, Ryan contacted Sall/Myers and informed the office of her complaints. Ryan arranged to have D.S. discharged as a patient from the Passaic office. In light of her pending lawsuit, Ryan arranged to have Sall/Myers continue to care for D.S. at another office with a different physician. D.S. never pursued that substitute appointment, although she did have a MRI taken at the Sall/Myers Paterson office on April 11, 2003. Ryan also gave a voluntary statement to the police on June 2, 2003, in which he related facts consistent with his ensuing trial testimony.

Nasarenko, who also testified for the Attorney General, is the owner of the tanning salon where D.S. had worked during the time of the alleged incidents with appellant. In addition, Nasarenko is an attorney and a municipal court judge. Prior to D.S.'s employment at the salon, Nasarenko had known her as a customer. She worked at the salon from about February to May of 2003. According to Nasarenko, D.S. was paid to clean up the tanning rooms after each customer left. The job was not strenuous and did not require heavy lifting. D.S. stopped working for him because she had started working as a dancer at a night club and the schedule was affecting her job performance at the salon.

Nasarenko recalled that D.S. disclosed to him in either April or May 2003 that, during the course of a medical exam, appellant had switched arms while taking her blood pressure and then had placed her hand on his genitalia. D.S. also told Nasarenko that appellant thereafter called her and that she had seen his car near her home.

Nasarenko suggested to D.S. that she had several options: go to the police, switch doctors, speak with her attorney, or do nothing. Nasarenko, at D.S.'s request, called Sall/Myers and related what D.S. had told him. Nasarenko later spoke with an attorney representing Sall/Myers who had called him to investigate D.S.'s accusations.

With respect to D.S.'s credibility, Nasarenko testified that he "had no reason to believe that [D.S.] was lying to me. Whether she was truthful or not, I don't know." Nasarenko also provided a statement to the police, which was consistent with his trial testimony.

In his defense, appellant called to the witness stand Marrero, the Sall/Myers Passaic office manager, and Susanna Merino, who worked there as a medical receptionist and as Marrero's assistant. Both of these defense witnesses supported appellant's claims of innocence and contradicted material aspects of D.S.'s accounts.

Marrero testified that she has known appellant since 1998. Marrero told the ALJ that appellant is an "excellent [d]octor" who "never had any complaints." As the office manager, she was the person that would have fielded such patient complaints. In her position as office manager, Marrero typically has contact with about 150 patients per week. Marrero, along with several of her co-workers, have relied upon appellant as their personal physician.

Marrero testified that she recalled seeing D.S. in the office on three occasions. On the first two occasions, Marrero recalled that D.S. was seen by appellant in her street clothes and did not put on a gown. Marrero explained that patients of general practitioners in the Sall/Myers group are never required to put on gowns during their first visits.

According to Marrero, on March 31, 2003, a Monday, D.S. came into the office and initially spoke with the receptionist, Merino. D.S. was supposed to go to physical therapy that day but did not. She had bruises on her face and leg. D.S. told Merino that she had been beaten by her boyfriend. Marrero and Merino then discussed the situation with D.S. in a private room. They advised her to call the police but she declined to do so. There was no doctor in the office that day, so they suggested that D.S. return on Wednesday, April 2 to be examined when appellant was next scheduled to be in the office.

Marrero recounted that D.S., as anticipated, returned in the afternoon of April 2 to see appellant. Marrero recalled that they had specifically instructed D.S. prior to the April 2 appointment to wear shorts and a sports bra that day so that it would be easier to take photographs of her bruises. However, D.S. arrived that day wearing a sweatsuit. Marrero instructed D.S. to put on a gown over her underwear, and to tie it with a string. Marrero recalled that when D.S. put on the gown, she wore only a pair of thong underwear underneath it.

Marrero testified that she was present in the room on April 2 while appellant examined D.S. During that time, D.S.'s breasts were never exposed. Marrero recalled that the blood pressure cuff in the exam room where D.S. was seen was then inoperable and would not have inflated. After the exam, Marrero left the room with appellant. Merino then came into the exam room to take the photographs. According to Marrero, D.S. was "normal" after this session and said nothing at all to her about appellant. This testimony was generally consistent with a pre-hearing certification signed by Marrero.

Appellant's other principal witness from his office, Merino, no longer works at Sall/Myers, but she was employed there from 2001 through about 2005. While she worked at Sall/Myers, Merino usually encountered around fifteen patients per day. She worked with appellant for several years, and continued to maintain contact with him on a weekly basis after the incidents in question. Merino acknowledged that she likes and respects appellant, and that she has heard only good comments and no complaints about him.

As a general practice, Merino did not remain in an examination room while a doctor was seeing a patient. She verified that physical exams are usually performed with the door closed.

Merino corroborated that D.S. told her on March 31 about being beaten by her boyfriend. Merino advised D.S. to go to the police. Merino then brought in Marrero, who arranged to have D.S. come back on April 2 so that appellant could look at the bruises on her face, breasts, legs and chest. Merino further recalled instructing D.S. to be sure to wear a sports bra and shorts on April 2 so that they could take pictures of her injuries.

Consistent with Marrero's testimony, Merino recalled that D.S. arrived for her April 2 appointment wearing a sweatsuit. During that exam, first Marrero and then appellant were present in the room. After the examination was completed, Merino went in to take the photographs. Merino recalled that D.S. was wearing just a gown and a white thong. Specifically, she was not wearing a bra, nor did Merino see one in the exam room.

Merino acknowledged that at some point after she took the photographs there was an interval when D.S. and appellant were alone together in the exam room. According to Merino, that interval could not have been longer than one or two minutes. However, Merino testified that the door was open when appellant and D.S. were in the room alone. This portion of Merino's trial testimony contradicted her prior statement to the prosecutor's office, in which Merino had stated that the door was then closed.

As D.S. left the office, she allegedly told Merino in a "flirting way," that she liked appellant. She did not appear to Merino to be nervous or anxious. Merino recalled that D.S. then told her that appellant had wanted to come to her home. Merino contended that, in response, she "just looked at [D.S.], [conveying an expression] like I think you're crazy."

Merino's testimony did waver as to which room had been used for D.S.'s April 2 exam. Initially, Merino reported that appellant had an assigned room but then decided that he may have used more than one examining room that day. Merino did recall that the blood pressure cuff in the exam room that appellant had principally used on April 2 was not functional that day.

Appellant also called Michael Calitas, who was a physical therapist at Sall/Myers in April 2003 but no longer worked there by the time of trial. D.S. saw Calitas in physical therapy on March 25, 2003. At that time, Calitas noted bruises on her shoulders and upper buttocks. However, he did not document the bruises when he next saw D.S. Calitas countered D.S.'s testimony that she had discussed appellant's whereabouts with the physical therapy staff on the day appellant allegedly drove to her home. Calitas recalled no such conversation.

In his statement to the prosecutor's office on June 12, 2003, which the Deputy Attorney General brought out at trial, Calitas recalled that D.S. had said something to him about "a doctor" calling her and wanting to see her at her house. However, Calitas did not know which doctor D.S. was referring to and he was surprised to hear about the allegations against appellant.

Another physical therapist at Sall/Myers, Juan Irizarry, also testified for the defense. Irizarry likewise stated that he had not spoken with D.S. about appellant or about his whereabouts on the day of her last physical therapy session. Irizarry also stated that he thought favorably of appellant, and that he was well regarded by patients and other staff.

The defense further presented testimony from Deborah Minassian, the chief administrative officer of Sall/Myers. Minassian similarly testified that she had never heard any other complaints about appellant and that he is well respected. Minassian noted that she continues to see appellant as her own personal physician and indicated that many of the Sall/Myers staff had chosen him as their regular doctor.

Minassian testified that, according to the office's records, D.S. had appointments with appellant on January 15 and March 7, but that she never had another scheduled visit with him. In particular, no visit was logged for March 26, the date D.S. ascribed to the alleged encounter in her trial testimony. However, Minassian noted that the "face sheet" of D.S.'s chart had listed March 26 as a possible date for her to return after her March 7 appointment. The office records did reflect that D.S. saw a Dr. Malkin, a neurologist with Sall/Myers, on March 20, and that Dr. Malkin requested a MRI study and other tests at that time. The practice issued no bills to D.S. for any visits on either March 26 or April 2, 2003, and D.S.'s health insurer was not charged for those dates.

Minassian recalled that she learned of D.S.'s accusations against appellant after receiving a call from Nasarenko, who was identified to her as an attorney. That call led Minassian to consult Sall/Myers's counsel. Counsel thereafter requested a formal statement from Nasarenko, but he declined to provide one. Minassian noted that when criminal charges were ultimately filed against appellant, the doctor took a leave from the practice. However, he came back to work there after the criminal matter was dropped.

After hearing these competing proofs, the ALJ credited D.S.'s allegations and rejected appellant's claims of innocence. As a general observation, the ALJ found in her written decision, dated April 5, 2007, that the Attorney General's witnesses had "no interest in the outcome" and "no self-interest for testifying." Conversely, the ALJ discounted the credibility of the witnesses proffered by appellant. The judge found that the defense witnesses had an interest in the case because of their past and present working relationships with appellant and, in some instances, their nexus with appellant as their personal or family physician. The judge thus deemed the defense witnesses "less credible" than those called by the prosecution.

Although the ALJ's written final decision did not address most of the specific discrepancies in D.S.'s factual accounts, the judge generally observed that her testimony had an "internal consistency and rationality." The ALJ noted that "her testimony with regard to the actual touching, phone call[s], and sighting of [appellant] near her home [were] credible." The ALJ further observed, again in a generic manner, that D.S.'s "inability to recollect . . . does not amount to [a] willful falsehood."

Consequently, the ALJ concluded that appellant had improper physical contact with D.S. in his office and thereafter had pursued her by appearing unexpectedly near her house. In light of her findings, the ALJ recommended that appellant's license to practice medicine should be revoked.

The ALJ's findings and recommendations were appealed to the Board. When it convened to consider the case on May 9, 2007, the Board heard oral arguments from counsel. The Board also permitted appellant to present thirteen character witnesses in mitigation of the recommended penalty. These character witnesses included a number of appellant's long-time patients, who praised his medical skills and integrity. Several of those patients, both male and female, indicated that they or their family members were continuing to see appellant, despite D.S.'s accusations of sexual misconduct. A number of appellant's colleagues also vouched for him, including several who remained his patients. As further support, Minassian presented a petition signed by forty-three of appellant's patients and colleagues, urging the Board to permit him to continue to practice. Appellant and his wife also pleaded for the Board's favorable consideration.

In its final agency decision of May 21, 2007, the Board adopted the ALJ's factual findings concerning the underlying allegations. In particular, the Board deferred to the ALJ's credibility findings, deeming them neither arbitrary nor capricious, see N.J.S.A. 52:14b-10(c), and recognizing the ALJ's "opportunity to assess the demeanor of the witnesses and consider their motivations."

However, the Board disagreed with the ALJ's recommendation to impose the extreme sanction of license revocation. Instead, the Board decided to suspend appellant's license, with conditions. The conditions required appellant to successfully complete a Board-approved intensive "boundary" course for physicians accused of sexual misconduct, to submit to "a full psycho-social evaluation," and to enroll in a professional assistance program. If appellant fulfilled these conditions, the Board would allow him after six months to apply to restore his license, with the Board retaining the right to impose limitations or further conditions.

Appellant then filed the present appeal. After the Board and this court declined to stay his suspension pending the appeal, appellant obtained an order from the Supreme Court granting such a stay, provided that a chaperone continue to be present when appellant sees female patients. The appeal was accelerated.

In his arguments to this court, appellant principally contends that (1) the ALJ improperly admitted other-crimes evidence pursuant to N.J.R.E. 404(b), severely tainting the ALJ's findings on credibility and liability. In addition, appellant maintains that (2) the Board and the ALJ erred in not drawing an adverse inference from D.S.'s destruction of the photographs; (3) the Board and the ALJ erred in not drawing an adverse inference from the prosecution's failure to call supposed corroborating witnesses; (4) the ALJ's decision is in contradiction to the facts and fails to provide an adequate, rational analysis of the evidence; (5) the Board and the ALJ did not properly analyze the credibility of the witnesses; (6) the ALJ improperly admitted a sworn written statement that D.S.'s friend A.A. provided to the police, without affording appellant a right to cross-examine her; (7) the prosecuting Deputy Attorney General engaged in various forms of misconduct; and (8) the Board improperly merged its administrative and prosecutorial functions by allowing the prosecuting Deputy Attorney General to represent it as a respondent on the present appeal.

One week before filing his merits brief on appeal, appellant moved to disqualify the prosecuting Deputy Attorney General as respondent's appellate counsel. After hearing telephonic oral argument on the claims, we denied the disqualification motion, finding that the Deputy Attorney General's representation of the Board on appeal caused no improper merger of agency functions and, moreover, was consistent with the ethical precepts set forth in In re Opinion No. 583, 107 N.J. 230, 238 (1987).

We now turn to the merits of the appeal.

II.

The pivotal question before us is whether the ALJ erred in granting the Attorney General's pretrial motion to admit, as part of the liability proofs in this case, evidence that appellant had committed sexual misconduct with two female patients in his office in 1992. The Attorney General argued that, although such conduct occurred eleven years before appellant treated D.S. in 2003, his prior "bad acts" were nonetheless admissible under N.J.R.E. 404(b). Specifically, the Attorney General argued that the 1992 misconduct was admissible under Rule 404(b) as proof of appellant's "opportunity" to have inappropriate contact with D.S. and, alternatively, as proof of his improper "motive" in causing her to touch him.

Appellant objected to the admission of such proofs of prior wrongful conduct in the liability phase of his case. Toward that end, appellant filed a pretrial motion to strike the allegations concerning the 1992 incident from the Attorney General's complaint and to bar their substantive consideration at trial. The ALJ denied the motion in a six-page written decision and order on December 17, 2004. The Board did not address this Rule 404(b) issue in affirming the ALJ's liability findings.

The "bad acts" evidence in question principally stems from appellant's admitted improper sexual conduct with a female patient in 1992. While the patient, S.H., was being examined in his office, appellant fondled her breasts and buttocks. Subsequently, appellant was charged with crimes arising out of that incident. Concurrently, the Board also sought to discipline appellant for his misconduct with S.H., as well as another female patient, M.T., who alleged she was likewise inappropriately touched during an examination.

Although appellant initially maintained his innocence of those 1992 accusations, he eventually agreed in 1995 to plead guilty to one count of fourth-degree criminal sexual contact solely with S.H., acknowledging at his plea hearing in the Law Division that he had indeed touched her inappropriately for his own sexual gratification. Appellant also agreed to enter into an administrative settlement with the Board, admitting that he had inappropriately touched S.H. He denied the allegations concerning M.T. The 1995 criminal conviction resulted in appellant being placed on probation for five years. The 1995 administrative settlement resulted in two years of administrative probation. He was permitted to continue to practice medicine, on the condition that he utilize a female chaperone for those two years. Appellant completed his term of probation without incident, and after agreeing to continue to use a chaperone for another year, his medical license was fully restored in 1997.

In ruling that the 1992 misconduct was admissible and germane to the liability issue in appellant's trial commencing fourteen years later, the ALJ found that the prior conduct, having been admitted by appellant in his criminal guilty plea and settlement with the Board, had been established by clear and convincing evidence. The ALJ further determined that the 1992 bad acts had probative value. The ALJ first determined that the acts tended to prove that appellant "had the opportunity to engage in medically unjustified and unsolicited sexual contact with D.S. while examining her." Secondly, the ALJ also reasoned that the prior acts were probative of motive, in showing that appellant "derives sexual arousal and/or gratification from the medically unjustified touching of female patients and is relevant to the issue of whether [appellant's] alleged inappropriate touching of D.S. was motivated by his own p[r]urient interest[.]" The ALJ further ruled that the 1992 misconduct was "similar" to the present accusations by D.S., and that the probative value of the prior bad acts "clearly outweighs any prejudicial effect the evidence might have in the case."

As a consequence of the ALJ's evidentiary ruling, appellant entered into a joint stipulation for trial, reciting, among other things, that "[o]n or about March 31st, 1995, [appellant] pled guilty to one count of Criminal Sexual Conduct with . . . [his] patient, S.H." Appellant also stipulated that "[o]n or about June 30th, 1995, [he] entered into a Stipulation of Settlement with the Board in response to allegations of inappropriate and unwarranted touching of two female patients, S.H. and M.T., during physical examinations." Anticipating that this subject would be explored by the Deputy Attorney General in her cross-examination, appellant chose to explain to the ALJ during his direct examination why he eventually decided to enter into a guilty plea and a settlement with the Board, a decision which he contended was then necessary to save his medical license. The prosecuting Deputy Attorney General, meanwhile, reminded the ALJ that appellant was a repeat offender, both in her opening statement and in her post-trial written summation. As anticipated by appellant, the Deputy Attorney General also delved into the substance of the 1992 misconduct in her cross-examination of him.

Appellant urges on appeal that the ALJ's evidentiary ruling was manifestly in error, violating the general admonition in Rule 404(b) that "evidence of other crimes, wrongs or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." N.J.R.E. 404(b). He further contends that the exceptions in Rule 404(b) allowing certain prior bad acts to be admitted as non-character proof of "opportunity" and "motive" are inapplicable here. His physical "opportunity" to move D.S.'s hand onto his pants while he was admittedly alone with her in the exam room was undisputed, although he denies taking advantage of that opportunity. Moreover, appellant argues that "motive" was not a litigated issue in the case, as his defense was not that he caused D.S. to touch him inadvertently or benignly, but rather that he never caused her to touch him in the first place.

Having thus argued that the ALJ's evidentiary ruling was founded upon a flawed analysis, appellant further contends that the ALJ's factual findings were tainted and must be set aside. He asserts that this case involved many disputed factual issues. Such issues required the factfinder to carefully weigh the credibility of the witnesses, including D.S., whose numerous factual accounts of what had occurred in appellant's office and when and how it occurred vacillated in many respects. Appellant therefore asks that we vacate the ALJ's factual findings, as adopted by the Board, and that we instead enter final judgment in his favor. In the alternative, he argues that he is at least entitled to a new trial on liability, at which the Rule 404(b) proofs should be excluded.

In assessing these arguments, we begin with a recognition that our Rules of Evidence for court proceedings do not strictly apply to administrative hearings. See N.J.S.A. 52:14B-10; N.J.A.C. 1:1-15.1 to -15.12.; see also Delguidice v. New Jersey Racing Comm'n, 100 N.J. 79, 84 (1985). Nonetheless, evidence rulings in administrative matters "shall be made to promote fundamental principles of fairness and justice and to aid in the ascertainment of truth." N.J.A.C. 1:1-15.1. The administrative tribunal is thus empowered to "exclude any evidence if its probative value is substantially outweighed by the risk that its admission will . . . [c]reate substantial danger of undue prejudice or confusion." Ibid. In making that determination, administrative law judges commonly apply, by analogy, the rules of admission and exclusion codified in our Rules of Evidence.

Indeed, in this very case, the prosecuting Deputy Attorney General invoked, and the ALJ relied upon, a different provision of the Rules of Evidence, N.J.R.E. 608, as the rationale for excluding, over appellant's objection, proofs about D.S.'s income tax filings and immigration status offered by appellant to impeach her credibility. We surely cannot take an approach that would apply the Rules of Evidence when they work in favor of one party but ignore those Rules when they work in favor of the opposing side. Moreover, the ALJ's evidentiary ruling on the "prior bad acts" evidence implicitly assumed that the Rules of Evidence are germane to their admissibility here. Accordingly, we do consult Rule 404, and the associated case law applying that Rule, to determine if the ALJ committed reversible error in admitting appellant's prior bad acts.

Initially, Rule 404 instructs in subsection (a) that, unless otherwise covered by a codified exception:

Evidence of a person's character or character trait, including a trait of care or skill or lack thereof, is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion . . [.]

[N.J.R.E. 404(a) (prefatory section).]

In subsections (a)(1) and (2), the Rule recites certain exceptions allowing character proofs in criminal cases that are not pertinent here. Subsection (a)(3), dealing with the character of a witness, is also not controlling, because the ALJ here ruled before trial that appellant's 1992 misconduct was admissible, irrespective of whether he took the stand in his own defense.

Subsection (b) of Rule 404, entitled "Other crimes, wrongs or acts," qualifies the so-called anti-propensity principle of subsection (a). Although Rule 404(b) reaffirms in its first sentence the principle that "[e]vidence of other crimes, wrongs or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith," it goes on to state:

Such evidence [of other crimes, wrongs or acts] may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

[N.J.R.E. 404(b) (emphasis added).]

As so constructed, Rule 404(b) represents "'a rule of exclusion rather than a rule of inclusion.'" State v. Reddish, 181 N.J. 553, 609 (2004) (quoting State v. Darby, 174 N.J. 509, 520 (2002)). Where the prior bad acts proffered against an alleged wrongdoer are crimes, our courts have construed the Rule 404(b) exceptions narrowly, because of the natural and prejudicial "tendency [of such proofs] to demonstrate a criminal predisposition." State v. G.S., 145 N.J. 460, 468 (1996). The Rule has also been applied in civil cases. See, e.g., Harris v. Peridot Chem., Inc., 313 N.J. Super. 257, 284 (App. Div. 1998); Showalter v. Barilari, Inc. 312 N.J. Super. 494, 511-12 (App. Div. 1998).

Thus, Rule 404 "reflects an overarching concern about predisposition evidence." State v. Williams, 190 N.J. 114, 132 (2007). On the other hand, the Rule also "accepts the common-law evidentiary principle that permits use of other-crimes evidence for certain proofs." Ibid. To balance these competing concerns, the Supreme Court adopted a multi-part test of admissibility under Rule 404(b) in State v. Cofield, 127 N.J. 328 (1992). The Court adopted the Cofield test "out of concern that the other-crimes evidence might be overused or be confused as prohibited predisposition evidence." Williams, supra, 190 N.J. at 132.

The four prongs of Cofield are as follows:

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[Cofield, supra, 127 N.J. at 338.]

The party seeking to admit the other-crimes evidence under this test has the burden of proof. Reddish, supra, 181 N.J. at 608-09. The ALJ canvassed these four Cofield requirements in her ruling when she denied appellant's motion to strike the proofs of his 1992 misconduct from the liability aspects of this case.

Under the first prong of the Cofield test, the Supreme Court has emphasized "that the material issue must be genuinely disputed." Cofield, supra, 127 N.J. at 338. The evidence may be used, for example, to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Darby, supra, 174 N.J. at 519 (quoting N.J.R.E. 404(b)). Ordinarily, "bolster[ing] the credibility of a witness" will not be an adequate reason to bring in prior-crimes evidence. Id. at 520. In this case, the Attorney General invoked Rule 404(b)'s particularized exceptions for "opportunity" and "motive" as the basis for the substantive use of appellant's prior criminal record.

To be sure, it is well established that evidence of prior crimes may be admitted as "opportunity" proof, in order to show the feasibility that a defendant could have committed the wrongful act presently charged. State v. Oliver, 133 N.J. 141, 153 (1993) (allowing evidence of prior bad acts to show that the "defendant could sexually assault women in his room without other household members hearing or seeing anything unusual"); State v. Krivacska, 341 N.J. Super. 1, 41 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002) (applying Oliver's holding, supra, in the context of sexual assaults occurring in defendant's office).

Here, however, appellant's prior conviction for, and admission of, sexual misconduct with a patient while working at another medical office in 1992 did not show that he had the opportunity for sexual contact with D.S. at Sall/Myers in 2003. In fact, the particular method by which appellant isolated the 1992 victim, and specifically whether he did so in a room with an open or closed door in 1992, was not explored at this trial. The defense in this case did not contend that if it was proven that appellant and D.S. were indeed alone together behind closed doors in the exam room, that the physical opportunity to take advantage of her would not have existed. If, as D.S. contended, the door was closed and no one else was then present, appellant's opportunity to engage in improper touching was simply not a "material issue in dispute." N.J.R.E. 404(b). Consequently, this particular exception under Rule 404(b) does not apply, and the ALJ erred in determining that it did.

As an alternative basis for relevance, the Deputy Attorney General contended that appellant's 1992 sexual misconduct bore upon his self-gratifying motive to touch D.S. inappropriately. Again, this claim is unavailing. Prior crimes evidence is not admissible where "the very action allegedly perpetrated by [the wrongdoer] bespeaks the criminal intent and motive to commit the offense with which he was charged." State v. Beckler, 366 N.J. Super. 16, 28 (App. Div.), certif. denied, 180 N.J. 151 (2004).

Although we recognize that the pertinent administrative regulation, N.J.A.C. 13:35-6.3(b)(4), required the Attorney General to prove in this case that the touching of D.S. occurred to satisfy appellant's "own prurient interest or for sexual arousal or gratification," those readily-inferable wrongful motivations were not contested by appellant. His defense was not that he caused D.S. to touch his genital area accidentally, but rather that the touching never occurred at all. If the touching were actually proven, the appellant was not contesting that it would have been for a wrongful purpose. It is manifestly and utterly wrong for a physician to grab a patient's hand and place it on his erect penis. Because the case was defended in that manner, the supposed issue of "motive" evaporated. Hence, there was no reason for the ALJ to allow proof of appellant's 1992 misdeeds to establish that he had a wrongful state of mind in 2003.

Because appellant's 1992 misconduct therefore did not have probative value in resolving a contested issue, the ALJ misapplied her discretion in admitting such "bad act" proofs. Accordingly, we need not address the three remaining Cofield factors, although we do note in passing that the record is weak in showing that the 1992 episodes were truly similar in kind and reasonably close in time to the alleged attack on D.S. (prong two of Cofield). We also doubt that any asserted probative value of such prior bad-acts proof is not outweighed by its inherent prejudice (prong four).

On the subject of prejudice, we now turn to the Attorney General's contention that any error by the ALJ in admitting the 1992 misconduct was inconsequential. We disagree. The Attorney General strenuously advocated that the 1992 misconduct remain part of this case. The alleged nexus between the 1992 misconduct and the present accusations by D.S. was pointedly emphasized by the Deputy Attorney General in her opening and closing arguments, painting appellant as a multiple sexual offender. The Deputy Attorney General particularly argued in her written summation that the prior bad acts showed appellant's "proclivity" to abuse female patients, an argument forbidden by Rule 404(b). These are images that are hard to erase from one's consciousness. Appellant was prompted by the judge's ruling to get into these inflammatory subjects in his own defense.

We recognize that the ALJ's merits decision, which listed appellant's 1992 conviction as part of the proofs she considered, did not dwell upon those prior bad acts. Indeed, after the initial recitation, the ALJ's decision thereafter makes no explicit reference to those bad acts. Even so, we cannot be sure that the 1992 misconduct did not play a role, consciously or subconsciously, in the ALJ's consideration of the merits of this hotly-contested trial, one that hinged so much upon the credibility of D.S. and appellant. Moreover, D.S.'s statements about the alleged misconduct were replete with inconsistencies, and were offset by substantial counterproofs, including the medical office's records, the generally exonerating testimony of the other employees, and the actual make and color of appellant's vehicles. There were no third-party eyewitnesses to the alleged touching. As such, the case devolved into a classic "she said, he said" contest.

In sum, this is not the sort of case in which we can relegate an evidentiary mistake to the dustbin of harmless error. Although we agree that appellant's 1992 misconduct is highly relevant to matters of penalty, that proof had no place in his liability trial. The proofs here were so close, and the inconsistencies in the accounts so bountiful, that we cannot presume that consideration of appellant's past misconduct did not prejudice him. In making that observation, we ascribe absolutely no bias to the ALJ. To the contrary, our impression from the record in this contentious trial is that the judge admirably endeavored to be thoughtful, fair and impartial. Nonetheless, the potential for taint, emanating from the erroneous admission of the 1992 misconduct, warrants a remand for a new trial. Indeed, in her written pretrial ruling, the judge was committed to its relevance, a conclusion we now reverse.

Because the original ALJ made credibility findings that now must be vacated, we recommend that the OAL arrange to have the matter re-tried before a different judge, one who is not informed by counsel before or during the liability phase of the trial about appellant's prior bad acts. This way, the original judge is not placed in the difficult position of trying to erase from her mind her mental impressions from the first trial. See R. 1:12-1(d); see also In Re Guardianship of R., 155 N.J. Super. 186, 195 (App. Div. 1977). At such a new trial, either party shall be permitted to admit the trial transcripts of any witness from the first trial who may no longer be available. The parties may also call, with appropriate advance notice, any witnesses with relevant knowledge who did not appear at the first trial. A case management conference in the OAL to plan for such a new trial shall be conducted within thirty days of the remand. In the interim, appellant shall continue to practice under the oversight of a Board-approved chaperone.

III.

Our disposition of the Rule 404(b) issue, and our resulting direction for a remand, makes it unnecessary for us to comment at length upon appellant's remaining points on appeal. It will suffice for us to state that we discern no merit in any of his remaining arguments.

In particular, we reject appellant's contention that he was entitled to any adverse inferences regarding D.S.'s alleged spoliation of the photographs of her bruises, as D.S. was not a party to this case and, moreover, the application of such an inference is committed to the sound remedial discretion of the trial judge. See Rosenblit v. Zimmerman, 166 N.J. 391, 402 (2001). Likewise, we discern no entitlement by appellant to an adverse witness inference based upon the failure of additional prosecution witnesses to appear who were, in our estimation, "merely cumulative." See State v. Wilson, 128 N.J. 233, 244 (1992).

With respect to appellant's criticisms of the inadequacy of the ALJ's credibility findings, those concerns, to the extent they are justified at all, are mooted by our remand for a new trial. Appellant's separate point objecting to the admission of A.A.'s police statement is likewise moot; moreover, his Sixth Amendment constitutional arguments under Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004), have no bearing in this non-criminal case. In any event, hearsay evidence is admissible in the OAL under its "residuum" rule. See N.J.A.C. 1:1-15.5; see also Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 599 (1988).

Lastly, we previously rejected in our pre-argument motion ruling appellant's claims of improper conduct by the Deputy Attorney General in her representation of the Board on this appeal. We likewise are satisfied from our review of the record that the Deputy Attorney General did not engage in prosecutorial misconduct at the trial level, through her zealous advocacy in attempting to safeguard the public. We discern no conduct on her part that was sufficiently "egregious that it deprived the [appellant] of the right to a fair trial." State v. Josephs, 174 N.J. 44, 124 (2002).

Reversed and remanded for a new trial in accordance with this opinion. We stay the remand to allow a potential petition for certification, provided that the conditions of the present stay imposed by the Supreme Court remain in force and any petition is timely filed. Jurisdiction is not retained.

 

At various places in the record, the medical practice is also spelled "Saul/Myers." We shall use the spelling "Sall/Myers" predominantly utilized in the parties' briefs.

D.S. erased this alleged message after receiving it. The record does reflect that appellant made at least one call to D.S. on the date in question from his cell phone.

The April 2003 calendar shows that the Fridays in that month were April 4, 11, 18 and 25.

Coincidentally, the then-boyfriend was also a patient of Sall/Myers.

This incident date conflicts with the March 14 date that D.S. had originally supplied to the police, as well as the incident dates of March 23 or March 24 that D.S. provided in her second police report. The date also conflicts with Sall/Myers's appointment records.

This was inconsistent with the Attorney General's December 2004 discovery response stating that D.S. had been instructed that day to remove her bra before seeing appellant.

The personal injury lawsuit was eventually dismissed voluntarily because Ryan advised that D.S. could not make a recovery, as one defendant was a public entity and her claim against the other defendant was subject to the verbal threshold.

The Attorney General suggested in her written summation that Sall/Myers may have falsified its records to reflect that D.S. was seen by appellant on April 2 rather than on March 26. The Attorney General suggests that Sall/Myers did so to qualify for insurance reimbursements, which are restricted by a limited number of compensable visits within a specified time frame. The ALJ did not adopt this suggested inference, and we do not comment on it further except to note that it is a possibility that bears upon the credibility of the defense proofs.

Following oral argument, the parties participated, with mutual consent, in the Civil Appeals Settlement Program ("CASP"). The court was notified several weeks ago that the CASP endeavor proved to be unsuccessful.

We have severed from this appeal issues that remain undecided in the administrative proceedings, specifically the Attorney General's request for a shifting of counsel fees and costs and associated discovery disputes.

Appellant did not start working for Sall/Myers until 1997.

We also do not understand how appellant's 1992 misconduct, given the limited details provided about those prior circumstances committed in a different medical office, could prove or disprove whether the door was open or closed in the Sall/Myers exam room when he allegedly touched D.S. improperly.

We are mindful that the Supreme Court recently cast doubt upon the universal necessity of proving temporal proximity under Cofield's second prong. See Williams, supra, 190 N.J. at 131; see also State v. Lykes, 192 N.J., 519, 535 (2007).

In addition, the alleged 1992 misconduct with M.T. was never admitted by appellant or otherwise adjudicated. Hence, the record does not establish that prior wrong by "clear and convincing" evidence, as required in Cofield's third prong.

The fuller quotation is appellant's "proclivity to use medical treatment as a guise to engage in sexual misconduct."

We recognize that there were several discrepancies in the accounts of the defense witnesses as well. Those discrepancies further underscore the major credibility issues present on both sides of this case.

(continued)

(continued)

45

A-4723-06T1

RECORD IMPOUNDED

December 24, 2007