These matters were opened to the court by notices of motion by defendants who seek to have the captioned cases placed on the inactive list pending the outcome of a related criminal matter. Although the motions were separately filed, they involve similar factual backgrounds and common legal issues and will be disposed of in one consolidated opinion.
On May 18, 1976 Dr. Mario Jascalevich was charged in a five-count indictment with violations of N.J.S.A. 2A:113-1 and N.J.S.A. 2A:113-2. Pertinent to the Biggs v. Jascalevich motion is count Four of Indictment S-495-76, which charges defendant Jascalevich with the murder of plaintiff's decedent Frank S. Biggs. Equally pertinent with regard to Shaw v. Riverdell Hospital is that, although it has been averred that Eileen Shaw died under mysterious circumstances, to date none of the defendants in either of these two cases has been indicted in connection with her death. Serious constitutional issues were raised in the course of the prosecution of the criminal indictments and the New Jersey Supreme Court has stayed the trial pending the outcome of a related criminal appeal.
On July 12, 1976 plaintiff Shaw instituted her suit, captioned Shaw v. Riverdell Hospital , which, in part, alleges that defendant Riverdell Hospital and others were negligent and reckless in care and treatment of decedent. Although Dr. Jascalevich is not a party defendant in that case, the parties have agreed to postpone actual trial of the case until Dr. Jascalevich's criminal matter is tried. However, plaintiff wants discovery to proceed in all respects, while defendant seeks to have the entire matter stayed pending the final disposition of the criminal case. Subsequently, on October 28, 1976, plaintiff Biggs instituted his action entitled Biggs v. Jascalevich. In it he alleges
that Dr. Jascalevich either intentionally or negligently administered to plaintiff's decedent the drug tubocurarite, thereby causing his death. Plaintiff further alleges that Riverdell Hospital is vicariously liable for the acts of its agent, and independently negligent in its failure to supervise and monitor the conduct of Dr. Jascalevich. Defendants in this action seek to have the entire case, including discovery, stayed pending the outcome of Dr. Jascalevich's criminal trial, while plaintiff seeks to have the entire matter proceed in the normal course.
It is a well established and highly cherished principle of Anglo-Saxon law that a citizen has a right to be free from compulsory self-incrimination. Malloy v. Hogan , 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964); Fries v. Brugler , 12 N.J.L. 79 (Sup. Ct. 1830); In re Vince , 2 N.J. 443 (1949). And although this right, like other constitutional rights, is not absolute, it is clear that a state may not exact too high a price for its exercise. Garrity v. New Jersey , 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967); Spevack v. Klein , 385 U.S. 511, 87 S. Ct. 625, 17 L. Ed. 2d 574 (1967); Gardner v. Broderick , 392 U.S. 273, 88 S. Ct. 1913, 20 L. Ed. 2d 1082 (1968).
Defendant Dr. Jascalevich (hereinafter "defendant") argues that if the civil action of Biggs v. Jascalevich were to proceed prior to a final disposition of the criminal case, an unconstitutional burden would be placed upon the exercise of his right to be free from compulsory self-incrimination. U.S. Const., Amend. V; N.J.S.A. 2A:84A-19. This argument is based upon the supposition that when the plaintiff begins civil discovery he most likely will demand, through interrogatories and depositions, answers which could subsequently incriminate defendant in his criminal trial. It may be assumed that defendant will refuse to answer such potentially incriminating questions and thereby
trigger a request on behalf of plaintiff for civil sanctions. Mahne v. Mahne , 66 N.J. 53 (1974); Costanza v. Costanza , 66 N.J. 63 (1974); Duffy v. Currier , 291 F. Supp. 810 (D. Minn. 1968); Insurance Co. of North America v. Steigler , 300 A.2d 16 (Del. Super. 1972) aff'd 306 A.2d 742 (Del. Sup. 1973). Anticipating such a turn of events, defendant contends that the court, through the simple expedient of a stay, should foreclose the contingency of civil sanctions which, he alleges, would result in unconstitutional penalties and, at the same time, relieve him of the difficult decision of choosing between sanction or self-incrimination. Such an analysis, however, puts the rabbit into the hat. For the issue which must be resolved is whether permitting Biggs v. Jascalevich to proceed in tandem with the criminal action would in fact unconstitutionally penalize defendant if he chose to assert his right against self-incrimination.
Initially, it must be observed that neither the Biggs nor the Shaw case has yet progressed to the point where defendant is required to decide whether to invoke his privilege. Moreover, even if defendant were, in the future, to invoke the privilege in connection with the Biggs litigation, the issue of an unconstitutional penalty would still not arise unless and until the court decided to impose a sanction. See Mahne v. Mahne and Costanza v. Costanza, supra. Clearly, then, the motion to stay the trial of the Biggs case and the motion to stay discovery in the Shaw case were prematurely filed.
The court, however, will not base its decision to deny these motions solely on the ground of prematurity, for it is of the opinion that the privilege against self-incrimination is not infringed, nor is too high a price exacted for the exercise of that privilege when a criminal defendant is put to the difficult choice of whether or not to assert the privilege in a related civil case. See U.S. v. Kordel , 397 ...