PATRICIA DEL VECCHIO v. TOWNSHIP OF BRIDGEWATER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

PATRICIA DEL VECCHIO,

Plaintiff-Appellant,

v.

TOWNSHIP OF BRIDGEWATER,

TOWNSHIP OF BRIDGEWATER POLICE

DEPARTMENT, CHIEF RICHARD

BORDEN, and WILLIAM CONNIFF,

Defendants-Respondents,

and

EDWIN J. SKIDMORE and

CATHY HAMILTON,

Defendants.

August 15, 2014

 

Argued February 25, 2014 Decided

 
Before Judges Reisner, Alvarez and Ostrer.

 

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1964-08.

 

Brian M. Cige argued the cause for appellant.

 

Alan Bart Grant argued the cause for respondents (Mauro, Savo, Camerino, Grant & Schalk, P.A., attorneys; Mr. Grant, on the brief).

 

Thaddeus P. Mikulski, Jr., argued the cause for amicus curiae, National Employment Lawyers Association of New Jersey, Inc.

 

PER CURIAM

Plaintiff Patricia Del Vecchio appeals1 the June 15, 2012 denial of her motion for a new trial, Rule 4:49-1(a), and the earlier motion for judgment notwithstanding the verdict (JNOV), Rule 4:40-2(c). The applications followed the jury's no cause of action verdict in the trial of her complaint alleging violations of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, against defendants Township of Bridgewater, Township of Bridgewater Police Department (the Department), Chief Richard Borden, and William Conniff, collectively referred to as "defendants."2 We agree that it was error for the trial judge to restrict the testimony of plaintiff's treating physicians, an outgrowth of his rulings and limiting instruction regarding certain doctors' notes seeking accommodation, which plaintiff presented to her employer. We therefore reverse and remand for a new trial.

The following facts and circumstances were developed during the trial. Plaintiff, who is now sixty-two, has worked as a police dispatcher, a stressful and demanding job, since 1989. She began her career in Somerville, accepting a position in Bridgewater ten years later in February 1999. Plaintiff worked continuously in that capacity until February 2008, when given the option by the Department of termination or transfer to another job, triggered by her unwillingness to be assigned the midnight shift. Plaintiff chose to be transferred to work as a clerk in the Department's records office. Plaintiff filed her LAD complaint in December 2008. She was terminated from the clerk's position for excessive absenteeism in September 2009.

Plaintiff's asserted reason for her unwillingness to work the midnight shift was irritable bowel syndrome (IBS) and other gastrointestinal issues. She began to treat with Gary Ciambotti, M.D., her gastroenterologist, in September 2003, five years before she filed suit. Ciambotti wrote the first note seeking to excuse plaintiff from the midnight shift, on February 5, 2004, stating that plaintiff suffered from "chronic gastroesophageal reflux" and that it was "advisable that she work the day turn for the next six months and try to avoid working the midnight shift." The February 5 note to her employer, and Ciambotti's thirteen others, were admitted into evidence during the trial subject to a limiting instruction we will discuss later in greater detail. Ciambotti was not identified in discovery as an expert witness, only as plaintiff's treating physician. He did not provide a report.

The Ciambotti notes, like the ones provided by other caregivers, were written at plaintiff's specific request. The notes varied from foreclosing her from working the night shift under any circumstances to requesting that she not be compelled to do so except in the event of an emergency. In addition to Ciambotti's fourteen notes, plaintiff supplied her employer with notes requesting that she be exempted from the midnight shift from: her family physician, a psychiatrist she saw in December 2006, a cardiologist with whom she consulted for heart palpitations in March 2007, and Ciambotti's practice partner Korta Yuasa, M.D.

As a result of the notes and the ensuing accommodations, plaintiff was not required to work the midnight shift in 2006, 2007, or 2008. The employer presented testimony that this accommodation caused problems in the workplace, both due to overtime and morale. On December 24, 2007, for example, when plaintiff was asked to stay and work a midnight shift because of an unexpected shortfall in staffing, she objected, complained of heart palpitations, and had to be driven by a patrol officer to a nearby hospital. No objective indications of cardiac difficulties were observed, and she was released. Another dispatcher, who had already worked one and one-half shifts, was thus required to fill the midnight slot.

Defendants' testimonial and documentary evidence regarding plaintiff's discomfort with midnight shifts, chronic absenteeism, and extensive sick time involved both her first position as a dispatcher in Somerville as well as her conduct while at Bridgewater. According to Somerville Police Captain Joseph Quinn, plaintiff openly opposed the requirement that dispatchers work a midnight shift when it was first mandated in Somerville. The day after the midnight shift schedule began there in 1995, plaintiff told Quinn that she would be submitting a letter from her doctor excusing her from working afternoons or midnights. When Quinn later asked her to produce the letter, she said that she was "not going that route."

In November 1995, after the first time she worked the midnight shift in Somerville, plaintiff wrote to then Police Chief Charles Niles, expressing her opinion that a dispatcher was not needed during those hours. In the letter, she also complained that the shift placed an undue hardship on her family. When cross-examined about her objections to working the midnight shift before her health problems developed, while employed at Somerville, plaintiff responded that it was because dispatchers were not paid a shift differential and the shift was unnecessary, as she had stated in the letter.

At trial, defendants first asked the judge to give the jury a limiting instruction when plaintiff presentedJames T.Naples as her witness. He recalled that in early 2004, shortly after he commenced employment as the BridgewaterTownship Administrator, the Chief of Police showed him a note written by Amy Shute, M.D., plaintiff's family physician, requesting that plaintiff be excused from working the midnight shift. Defense counsel objected to the admission of the note, arguing that it contained a medical opinion even though Shute had not been identified as an expert, had not provided a report, and was not going to be called as a witness. The trial judge said:

THE COURT: Yeah. So, in other words, what I would be inclined to do is limit it, and then what we can do is talk when I have a second with you guys, so I can tell the jury I'll let them consider it for making the accommodation, but they're not, since [s]he's not testifying --.

The issue resurfaced with regard to one of the notes written by Ciambotti, and defense counsel renewed his objection before Ciambotti testified. This time, the judge said:

As far as the notes were concerned, kind of said this at side bar. What I was going to say as far as the Doctor's notes are concerned, to give the jury a limiting instruction. They can be considered for the use or [sic] whether or not -- they can be considered that the plaintiff made a request for an accommodation. However, as far as the allegations contained in them concerning her medical condition, if the doctors are not going to testify, then I'm not going to permit it obviously.

 

. . . .

 

I have a running debate with lawyers. When they say they are going to bring in the treating physician, and they say, well, he is not an expert, Judge, he's only going to testify as to the facts, well, look at the Rule book. The Rule book is very clear.

 

A layperson can testify as to the facts. Anybody can come in and testify to the facts. But when you go to give an opinion, then you are an expert. And lawyers argue with me and say, well, no; he's just the treating doctor. All right. But the minute he gives an opinion, he's an expert because he is giving an opinion about something that obviously he has special knowledge, expertise, etcetera, in, and the rulings are very clear. Witnesses can't give opinions unless they're qualified as an expert, and obviously he is an expert. You bring him in, you are going to qualify him. He went to med school, I assume, blah-blah-blah, and he is going to be giving an expert opinion.

 

So do you have a report from him?

 

[DEFENSE COUNSEL]: Your Honor, I do not have a report from Dr. Ciambotti, only these notes. And furthermore, your Honor, counsel, plaintiffs . . . did not name Dr. Ciambotti or Dr. Shute as experts in this case.

Plaintiff's counsel reasserted that a treating physician "can describe symptoms, can describe care, and can describe what's making the symptoms worse." The court interrupted, stating:

Giving an opinion, giving a medical opinion. If you want to come in and say, okay, you know, what do they look like when they come in, all right. They were flushed or they were nervous or something, all right. You can go that far. But once you say, okay, I'm going to make a diagnosis, and I'm going to say that this person, whatever, then you are beyond a lay opinion person. Come on. He's an expert witness.

 

. . . .

 

[] Counsel, what you're trying to do is the Doctor is, in effect, an expert. You are saying, okay, based upon this, you made a, you made a conclusion that they had a certain condition. Yes, I did. And then you are going to give an opinion as to whether a person with that type of condition should be able to work the midnight hour and whether or not, if they have to work the midnight shift, is that going to aggravate that. If that isn't for an expert, I don't know what is.

 

. . . .

 

Okay. What we had hashed out in chambers is this. I'm going to give the jury a limiting instruction on these doctors' notes. I'm going to let them consider it for a request for making a reasonable accommodation. However, since Dr. . . . Ciambotti is not going to testify as an expert, nor give an opinion on her condition, they are not to consider it for that.

[PLAINTIFF'S COUNSEL]: He is going to talk about her condition to the extent that she has a GI condition, but he's not going to talk about, you know -- he is going to say she has a GI condition, that's why he wrote the notes.

 

THE COURT: All right. And then what do we do? How do we handle it?

 

[PLAINTIFF'S COUNSEL]: I think what we are not going to say is as a result of her condition what the consequences are. That's what would make him an expert witness.

 

[DEFENSE COUNSEL]: If . . . your Honor's instruction to the jury is that they are not to consider the relationship between whatever the Doctor has diagnosed and her ability to work midnights or not, that is an opinion which requires expert testimony, and he has not been identified as an expert. So, if he simply says I know she had a gastrointestinal condition, I don't have any problem with that, your Honor. All right.

 

[PLAINTIFF'S COUNSEL]: I think I agree with him. I think I agree to say he diagnosed her, he provided these notes. You know, I mean, that's really the limiting instruction. That's all he did. He diagnosed her and he provided these notes. That's his involvement.

 

THE COURT: I'm not comfortable with it. I think what we should do is this. Let's keep going.

 

When Ciambotti testified, the judge gave this version of the instruction:

Ladies and gentlemen, you may be seated.

 

Before we start, counsel referred to and marked as exhibits, and I expect that they'll be entered into evidence, a number of doctors' notes and signed by a Dr. Ciambotti of the Diagnostic Healthcare Center.

 

It's my understanding that Dr. Ciambotti treated the plaintiff for certain medical complaints and provided these notes to her employer. These notes may be considered as a request by the plaintiff for a reasonable accommodation. These notes are not evidence that the plaintiff suffered from any particular disease or illness, and are not evidence of any specific diagnosis.

 

During the trial, plaintiff also proffered the testimony of Joseph M. Rochford, M.D., a psychiatrist with whom she consulted in 2006 regarding symptoms of anxiety. She also asked him for a note for her employer exempting her from the midnight shift. Rochford testified before Ciambotti. Regarding the note from Rochford, the judge told the jury:

Here in this case Dr. Rochford treated the plaintiff for certain medical complaints and provided this letter to her employer. This letter may be considered as a request for a reasonable accommodation by the plaintiff only. These notes are not evidence that the plaintiff suffered from any particular disease or illness and are not evidence of any specific disease.

 

This Doctor was not called by the plaintiff as an expert witness, nor was he called to give an opinion on her condition. So only for the limited purpose of giving notice to her employer to perhaps give her a reasonable accommodation, that's the only thing it can be used for.

When Ciambotti testified, shortly after stating his name and profession, defense counsel requested a sidebar. He said:

This is a physician. He is not an expert named by the plaintiff. He's asking him questions about the digestive system, I don't have any problem with him telling him what his profession is. The point of the matter is at this point for him to go into this area is asking for expert opinion from this witness. He has not expressed any opinion. What he is here to do is simply talk about the times [plaintiff] may have gone to see him, perhaps any tests that were done, any history that she may have given to him, and that's it, based upon his records. He is not an expert in this case, and so I would object to the use of this document.

 

The judge, who understood the objection to include any testimony by the doctor regarding plaintiff's diagnosis, said:

I think his objection is well founded, I really do, because you are going to have [Ciambotti] testify to whatever. As long as he is not going to give an opinion, we discussed this, I'll permit it, but I think I have to sustain this objection.

 

Almost immediately afterwards, when plaintiff's counsel asked Ciambotti to define IBS, defense counsel again objected. The court sustained the objection, observing:

What is diagnosis and treatment? What does it involve? You know, we're -- just been better if you . . . had named this guy as an expert and provided the report, we wouldn't be having this conversation.

 

. . . .

 

First of all, we have -- the problem I have is I'm not going to let you give an ultimate opinion on this thing. Treated him, what you treated him for, fine, but I'm not going [to] let you give an opinion. Not within a reasonable degree of medical probability that her working on midnights was going to aggravate her condition. I'm not going to let you do that.

 

Ciambotti's brief testimony was therefore limited to the fact that he treated plaintiff for IBS. After his testimony, the jurors requested that Ciambotti be asked a number of questions regarding the nature of IBS, its treatment, and its control. The court refused to propound the questions, opining that to permit Ciambotti to answer them would result in the doctor rendering inadmissible expert testimony.

The only expert plaintiff presented at trial was Philip Witt, Ph.D., a psychologist. He diagnosed her as suffering from an adjustment disorder with mixed anxiety and depression from her fears regarding working the midnight shift. He noted that her panic attacks subsided after she went to work in the records room and was working days.

John Aylward, Ed.D., a psychologist retained by the Department to conduct fitness examinations, examined plaintiff twice, in 2006 and 2011. His de bene esse deposition was played to the jury, during which he opined that plaintiff had a tendency to "somatize" her anxiety, or express her anxiety in physical symptoms. He agreed that her IBS was real and was, in her perception, disabling. Based on his 2006 evaluation, Aylward recommended plaintiff not be returned to the midnight shift. By the time he issued his 2011 reports as a result of the second evaluation, he knew that plaintiff had been reassigned as a clerk, which he had a "sense" was an accommodation.

Defendants also presented Steven Fiske, M.D., a gastroenterology specialist who examined plaintiff in February 2010. He defined IBS, stating that it was a diagnosis fundamentally based on a patient's self-report and the exclusion of other possible conditions. Fiske said that in his many years of treating IBS in thousands of patients, he had never treated a person who could not work shifts as a result of the disease. He opined it was possible that plaintiff was malingering, in other words, using her medical conditions for secondary gain to avoid doing something she did not want to do. Fiske reached that conclusion, at least in part, because he did not consider IBS to even be a disabling disease. As he said, in thirty-four years he had "never . . . had to disable a patient for IBS."

The trial judge's closing charge to the jury included the following:

What I want to first discuss is a limiting instruction. I gave you a limiting instruction, and -- on Dr. Ciambotti, Dr. Shute, . . . Dr. Yuasa, Dr. Kulkarni[,] . . . Dr. Rochford, Dr. Kluger. They all treated or examined the plaintiff for certain medical complaints and provided notes to her employers. These notes were marked in evidence and you'll have them in the jury room. These notes may be considered as a request for a reasonable accommodation by the plaintiff. These notes are not evidence that plaintiff suffered from any particular disease or illness and are not evidence of a specific diagnosis.

 

In this case, the only experts identified by the parties to testify as to plaintiff's medical condition are Dr. Witt for the plaintiff and Dr. Aylward and Dr. Fiske for the defendant. You're not to consider opinions expressed by other witnesses as evidence of the plaintiff's medical condition.

 

The jury answered the first question on the jury verdict sheet in the negative, thereby resulting in the no cause verdict. The question was: "1. Whether Plaintiff proved by a preponderance of the evidence that she suffered from a disability as defined by the New Jersey Law Against Discrimination that precluded Plaintiff from working the midnight shift?"

During plaintiff's motion for JNOV, the following exchange occurred pertaining to the court's limiting instruction regarding the doctor's notes:

[PLAINTIFF'S COUNSEL]: To go further, if you -- another point I want to make clear. I want to underline this. The only way what happened can be characterized as a result of an agreement --- I mean plaintiff never wanted -- you know --

 

THE COURT: Counsel, it was a compromise.

 

[PLAINTIFF'S COUNSEL]: No.

 

Well, what -- your Honor, what I want to submit to the court is that, you know, this was a compromise after the court's decision to give an instruction. Plaintiffs never wanted the instruction. I mean I just want to be clear about that.

 

It was when the court determined that it was going to give an instruction that we didn't advocate, involvement in trying to craft one that would be less onerous. But, you know, I want to be clear that we never wanted an instruction. We didn't agree to the instruction because we thought it was a good idea. We made an effort to agree to language based on the decision to give the instruction.

 

And if your Honor just briefly looks at --

 

THE COURT: But, just hold on.

 

The instruction was not -- it was a two-edge sword. It wasn't a one-edge sword. Because you had who -- you had Doctor Ciambotti -- and who else did you have testify of those doctors' reports -- what doctors did you just put their reports in?

 

[DEFENSE COUNSEL]: Doctor Ciambotti, Doctor Rockford. Your Honor, if I may just add --

 

[PLAINTIFF'S COUNSEL]: Those were the treating doctors.

 

THE COURT: Those were the treating doctors. But Doctor Shute, Doctor [Yuasa], Doctor Kugler.

 

[PLAINTIFF'S COUNSEL]: No reports. Those were only note[s].

 

THE COURT: Their notes were submitted and they didn't testify.

 

[PLAINTIFF'S COUNSEL]: Correct.

 

THE COURT: But that was part of the compromise. Because you were able to put those notes in. I mean you wouldn't have been able to put them in unless he had the opportunity to cross-examine those doctors. And we said, okay, look, here's what we'll do. We'll put their notes in for the limited purpose of the requesting a reasonable accommodation. But, basically, what I am trying to say, there were -- we went back in the back and we negotiated this. It wasn't a one-sided deal.

 

[PLAINTIFF'S COUNSEL]: Well, your Honor, those notes I suggest would have gotten in any way [sic] on the issue of notice. They had become business records.

 

On appeal, plaintiff raises the following points:

I. LEGAL ARGUMENT.

 

A. RELEVANT NJLAD LAW.

 

B. REVERSIBLE/PLAIN ERROR BY THE TRIAL COURT.

 

C. RELEVANT LAW FOR GRANTING A NEW TRIAL AND/OR FOR JUDGMENT NOTWITHSTANDING THE VERDICT.

 

D. THE LANGUAGE OF THE FIRST INTERROGATORY OF THE JURY VERDICT SHEET IS IMPROPER AND PLAIN REVERSIBLE ERROR (NOT RAISED BELOW).

I

Motions for a new trial under Rule 4:49-1(a) should be granted if "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." On appeal, we:

"accept as true all the evidence supporting [the non-moving party] and accord [her] all legitimate inferences[,]" Zive v. Stanley Roberts, Inc., 182 N.J. 436, 441 (2005), bearing in mind that "the trial court's 'action[s] should not be disturbed unless it clearly and unequivocally appears there was a manifest denial of justice under the law[,]'" Dolson v. Anastasia, 55 N.J. 2, 8 (1969) (quoting Hartpence v. Grouleff, 15 N.J. 545, 549 (1954)). The standard we apply to the review of issues of law, however, is different. On appeal, "'matters of law are subject to a de novo review.'" Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002) (quoting Balsamides v. Protameen Chem., Inc., 160 N.J. 352, 372 (1999)). Specifically, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

 

[Raspa v. Office of the Sheriff, 191 N.J. 323, 334-35 (2006) (first, third, fourth, fifth, and sixth alterations in original).]

 

In summary, "[j]ury verdicts should be set aside in favor of new trials only with great reluctance, and only in cases of clear injustice." Boryszewski ex rel. Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). Such an injustice occurred in this case.

In order to establish the elements of a prima facie case of discrimination under the LAD, a plaintiff must demonstrate, among other things, that he or she is in a protected class, i.e., that he or she qualifies for the protection afforded by the statute as a person with a disability, or as a person perceived as having a disability. See Victor v. State, 203 N.J. 383, 408-09 (2009). Additionally, a plaintiff must establish her ability to perform the essential functions of the job, with or without reasonable accommodation. Id. at 409-10. "Disability" means

physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness including epilepsy and other seizure disorders, and which shall include, but not be limited to any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment or physical reliance on a service or guide dog, wheelchair, or other remedial appliance or device, or any mental, psychological or developmental disability, including autism spectrum disorders, resulting from anatomical, psychological, physiological or neurological conditions which prevents the normal exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques. Disability shall also mean AIDS or HIV infection.

 

[N.J.S.A. 10:5-5(q).]

 

II

Plaintiff contends first that the court prejudicially erred in limiting Ciambotti's testimony. These decisions, she argues, made it impossible for her to establish that she fell within the class of persons protected by the LAD.

Unquestionably, when the issue first arose, it was in the context of a note from Shute, plaintiff's family physician, whom it was anticipated would not testify. Plaintiff acquiesced to the instruction that the judge gave.

After speaking with counsel outside the jury's presence and off the record, the issue resurfaced. This time, Ciambotti's note was at issue, and the trial judge expressed his view that treating physicians can only testify as to facts, because, if he or she gives any opinion, at that moment, the witness becomes an expert. When plaintiff's counsel asserted that the evidence rules permitted a treating physician to describe symptoms, diagnosis, care, and treatment even in the absence of an expert's report, the court disagreed. The judge opined that once a doctor has made a diagnosis, "then you are beyond a lay opinion." He went on to say that he believed that, if a doctor testified that a patient had a particular ailment, then that doctor would also be entitled to state whether a person with that condition could work the midnight shift, which would violate the rules regarding expert testimony in the absence of a report. Plaintiff assented.

The record supports the conclusion that when counsel met with the judge in chambers, the judge fashioned a limiting instruction. However, it is not clear that plaintiff's attorney had agreed to the extreme limitation the judge imposed on Ciambotti's testimony or to his final formulation of the limiting instruction as to the notes.

The judge also opined that the notes would not have been admissible unless defense counsel had an opportunity to cross-examine the physicians who wrote them. The judge therefore perceived plaintiff as having agreed to a "compromise" -- the limiting instruction.

The difficulty is that both Ciambotti and Rochford were available for cross-examination, and Ciambotti wrote most of the notes. Even if plaintiff agreed to the instruction as to notes that were going to be entered into evidence, which were written by doctors who were not going to be called as witnesses, plaintiff did not agree to the court's final version of the instruction as to the notes and testimony by physicians who did testify.

The trial court did not seem aware that under Stigliano v. Connaught Laboratories, Inc., 140 N.J. 305 (1995), and Ginsberg v. St. Michael's Hospital, 292 N.J. Super. 21 (App. Div. 1996), plaintiff was entitled to far more extensively examine Ciambotti. In Stigliano, a three-month-old child started having seizures shortly after she was vaccinated. Stigliano, supra, 140 N.J. at 307. Her parents sued the maker of the drug, as well as the doctor who administered it. Id. at 308. The central question in the case was whether the immunization caused the seizures, with the parents-plaintiffs claiming that it did while the defendants posited that the cause was likely congenital. See id. at 308-09.

The plaintiffs consulted with three pediatric neurologists for diagnosis and treatment of the seizures. Ibid. None believed that the immunization was the cause. Ibid. In preparation for trial, the plaintiffs retained two experts who opined that the seizures were the result of the administration of the vaccine. Id. at 309. The plaintiffs did not intend to call the treating physicians to testify as to cause. See Id. at 309. They obtained an order from the trial court barring defendants from questioning the doctors about the cause of the seizures, reasoning that the witnesses were "not experts" and thus should not be allowed to render opinions that would be harmful to their patient's case. Ibid. The ruling was found to be error because the treating doctors' opinions about causation were related to the diagnosis of the child's condition and the medical care they provided. There was "no reason to distinguish the doctors' testimony as to causation and their testimony as to diagnoses and prognoses." Id. at 310 (internal quotation marks omitted).

Our Supreme Court stated that, although the treating doctors were "doubtless 'experts,'" they were more accurately fact witnesses. Id. at 314. However, "the characterization of the treating doctors' testimony as 'fact' or 'opinion' create[d] an artificial distinction." Ibid.

As fact witnesses, the treating doctors may testify about their diagnosis and treatment . . . , including their determination of that disorder's cause. Their testimony about the likely and unlikely causes of [the child's] seizure disorder is factual information, albeit in the form of opinion. [See] N.J.R.E. 701 (permitting fact witnesses to testify in the form of opinion to assist in determining fact in issue). Because the determination of the cause of a patient's illness is an essential part of diagnosis and treatment, a treating physician may testify about the cause of a patient's disease or injury.

 

[Ibid.]

 

Similarly, in Ginsberg, a widow brought a medical malpractice case against a doctor and a nurse for the death of her husband. Ginsberg, supra, 292 N.J. Super. at 26. The trial court refused to allow the deceased's treating physician (who was not a defendant) to testify as to his opinions regarding his patient's condition or the cause of death. See id. at 32. Citing Stigliano, we said that "[i]t is well settled that treating physicians may testify as to any subject relevant to the evaluation and treatment of their patients." Ginsberg, supra, 292 N.J. Super. at 32. Therefore, even though the treating physician was not named as an expert and did not provide a report, it was error to preclude the treating physician from testifying about his patient's condition and cause of death. Id. at 32-33.

Here Ciambotti, plaintiff's treating physician, was not even allowed to define IBS. Additionally, he was barred from testifying at any length regarding plaintiff's illness, his course of treatment, or the reason that he believed requesting that she not be required to work the midnight shift was therapeutic.

It was error for the judge to have barred Ciambotti from testifying regarding the disease of IBS, his diagnosis of plaintiff's condition, his treatment, and why he wrote the notes. The judge should have permitted the doctor to testify about causation, diagnosis, and progress, not to mention the basic definition of the disease. Arguably, the judge should have permitted the doctor to explain the notes, if he considered seeking to excuse plaintiff from the midnight shift to have been a part of the treatment and care that he provided for her medical condition.

In our view, the trial judge's reading of N.J.R.E. 701 was entirely too narrow, and his application of Rule 4:10-2(d)(1), which states that a treating physician may be an expert witness, regarding the issuance of an expert report before an expert is permitted to testify, too preclusive. The judge erred as a matter of law.

Our courts have held that a trial court's exclusion of evidence based on a misapplication of the law is reversible error when that evidence's exclusion had a substantial likelihood of changing the outcome. See generally R. 2:10-2 ("Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result . . . ."); Pressler & Verniero, Current N.J. Court Rules, comment 4.7 on R. 2:10-2 (2014) ("Prejudicial error as to the admission of evidence in a civil trial is [] reversible.").

In Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 293-94 (2006), the plaintiff succeeded at trial in her sexual harassment suit against her employer under the LAD. On appeal to the Supreme Court, the defendant argued that the trial judge's exclusion of certain reputation and opinion testimony constituted reversible error. See Fitzgerald, supra, 186 N.J. at 294. The Court determined that the trial judge's erroneous exclusion of all of defendant's proffered character witness testimony--based on a misunderstanding of the foundational requirements for reputation and opinion testimony--was harmful error because "credibility was pivotal" in the LAD action. See id. at 312-14. The Court remanded for a new trial. See id. at 321.

Schwartz v. Jordan, 337 N.J. Super. 550, 552-54 (App. Div.), certif. denied, 168 N.J. 293 (2001), involved a plaintiff's suit against the defendant municipality under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:12-3. We determined that the trial judge had improperly excluded, under applicable case law, documentary evidence that "struck directly at the heart of the palpably unreasonable issue" under the TCA. See Schwartz, supra, 337 N.J. Super. at 559-64. Because "the jury could not fairly evaluate [the] plaintiff's claim" absent that evidence, "the exclusion . . . c[ould ]not be considered harmless error," and, accordingly, the matter was remanded for retrial. See id. at 552, 566, 568.

Here, even if the physicians had testified that they wrote the notes because they believed it was necessary for plaintiff's care, the jury still had to fulfill their function as to the weight to give the testimony, because every single note was written at plaintiff's behest. They had the context of plaintiff's objection to working the midnight shift in Somerville. They had Aylward's opinion that plaintiff might be malingering, i.e., using her condition for a secondary gain.

The prejudice to this plaintiff was substantial because this ultimately left the jury with little more than defendant's expert. And he testified that in many years of treating IBS patients, he had never disabled a patient because of the condition or found it prevented someone from shift work. Regardless of the ultimate decision a jury may make about the merits of plaintiff's cause of action, she was unquestionably prejudiced by the judge's decision regarding Ciambotti. The judge's limiting instruction may have been an appropriate means to deal with notes written by physicians who did not testify but it was harmful error as to Ciambotti, the treating physician whose testimony was limited by the trial judge to little more than identifying plaintiff as his patient.

As amicus points out, the jury questions for Ciambotti, which the judge refused to allow him to answer, went to the very heart of the matter. Because of the court's view that Ciambotti was a mere fact witness prohibited from testifying in any fashion as an expert, the only answer that the court allowed him to give to the many proposed jury questions with regard to the notes as well as IBS was with reference to whether notes were written by doctors merely at a patient's request. And, on that score, the doctor very briefly responded that they were not.

Plaintiff's counsel acknowledged that Ciambotti was not being offered to address the consequences of plaintiff's condition because "[t]hat's what would make him an expert witness." Whether the condition was disabling is a distinct issue from its existence and treatment. But, it is unclear from the record whether plaintiff's counsel was doing anything other than reiterating his understanding of the judge's rulings.

In determining whether an evidentiary error is harmful, we must consider whether, "in all the circumstances[,] there was a reasonable doubt as to whether the error denied a fair trial and a fair decision on the merits." State v. Macon, 57 N.J. 325, 338 (1971). This evidentiary error prevented plaintiff from establishing that necessary first step in an LAD case that she was a member of a protected class.

The trial court's rulings were made without reference to Stigliano and the well-established principles found in that case. They were exclusions of evidence that may have indeed changed the outcome. We conclude that not only were those rulings of law mistaken, they were so prejudicial to plaintiff's case as to have made the outcome unjust. A new trial is warranted.

As to plaintiff's second point of error, we comment only briefly. In this somewhat unusual case, where proof of plaintiff's membership in the protected class is a threshold issue, combining both that issue and the question of reasonable accommodation into one jury interrogatory is inappropriate. The language on retrial should be broken down for the jury.

Reversed.

 

 

 

1 Defendants Edwin J. Skidmore and Cathy Hamilton were dismissed by way of summary judgment prior to trial; that decision was not appealed.

2 Defendants object that plaintiff's appeal with regard to the no cause of action itself and related issues was out of time. We will consider the verdict, which was included on plaintiff's notice of appeal and case information statement.