On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Before Judges Conley, Wallace and Carchman.
The opinion of the court was delivered by: Conley, J.A.D.
Plaintiff, Josephine Higgins, was a part-time nurse for Pascack Valley Hospital's mobile emergency-care squad. In 1991 and 1992 she complained to her supervisors on two occasions about what she believed to be misconduct by a co-employee. The supervisors investigated both complaints and concluded that the co-employee had not engaged in the alleged misconduct. As a result of her complaints, however, other co-employees became hostile towards plaintiff and expressed to their supervisors the desire not to be assigned to work with her. In her subsequent civil action, plaintiff contended that as a result, her work hours were reduced and her request for transfer to the full-time position of a mobile intensive care nurse was denied in retaliation for her complaints and, thus, in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. She also claimed that defendants defamed her. Defendants appeal a jury verdict returned in favor of plaintiff on both claims, awarding her compensatory and punitive damages of $640,000 (reduced to $619,000 on remittitur), plus $200,816.77 counsel fees, $11,884.85 in costs, and $26,082 prejudgment interest. Plaintiff cross-appeals from the remittitur, the calculation of counsel fees, and the dismissal of her complaint against the individual defendants as to their personal liability.
On defendants' appeal, we reverse the verdict as to defamation, agreeing with defendants that a cause of action on that theory was not, as a matter of law, established by plaintiff. Because we believe the jury charge as to the CEPA claim was erroneous, we reverse the verdict as to that claim and remand for a new trial thereon. We do so not only as to liability but damages as well because we think the award of compensatory and punitive damages can not be separated from the liability issues.
As to the issues on cross-appeal, our reversal of the CEPA and defamation liability verdicts renders the remittitur and counsel fee issues moot. We are convinced the trial Judge, for the reasons she expressed, properly dismissed the complaint as to the individual defendants and that, further, the issues on appeal as to that dismissal are without merit and require no further opinion. R. 2:11-3(e)(1)(A), (E).
In 1985, plaintiff began working for the hospital as a part-time nurse in its Mobile Intensive Care Unit (MICU). The unit responds to accident scenes with a nurse and a paramedic, who provide emergency treatment to injured victims and ride in the ambulance with the victims until arrival at the hospital. Plaintiff's employment status was known as "per diem-unscheduled." During her years with the hospital, plaintiff also worked part-time elsewhere as a nurse or nursing instructor. Her complaint originates from two separate incidents involving two separate calls. The parties have referred to the first incident as "the paperwork incident" and the second as the "pill-theft incident."
After completing an MICU call, the nurse and paramedic are required to fill out either a white or a blue sheet. A white sheet is used when the MICU arrived at the scene and provided some assessment or treatment. A blue sheet is used if the MICU call was canceled by the police or ambulance staff before the MICU arrived.
Plaintiff testified that in the fall of 1991 two MICU nurses had been suspended for filing a blue sheet for an incident in which they had actually seen the victim; they should have filled out a white sheet instead. Shortly thereafter the MICU coordinator held a meeting at which he reminded the staff of the importance of the necessity for proper paperwork.
About two months later, on November 18, 1991, plaintiff was serving as a volunteer for Triboro Volunteer Ambulance Corps when an ambulance was dispatched to the home of two firemen, father and son, who had been injured during a drill. Plaintiff knew the son, Kenny Steele, whom she began treating for smoke inhalation. Also reporting to the scene was an MICU vehicle manned by two paramedics, Bruce Contini and Peter Fromm. Plaintiff saw them evaluating Kenny. Plaintiff's ambulance then transported Steele to the hospital.
The next time plaintiff reported for MICU duty, about a week later, she checked the MICU log to find out what had happened to Steele. The log indicated that the MICU call had been canceled before Contini and Fromm ever got to the scene. As a result, plaintiff formed the opinion that the paperwork she found was incomplete, and that the paramedics had failed to complete the appropriate forms.
At trial Fromm gave his version of the incident. He and Contini were dispatched to attend to a patient with a respiratory emergency. While they were en route to the scene, they received a second dispatch that there was a second patient needing attention at the same location. Upon their arrival either some police officers or the ambulance staff told them that the second patient did not need their assistance; hence, they treated Kenny Steele, who was suffering from smoke inhalation. Plaintiff had already arrived with the ambulance and was with Steele. Fromm and plaintiff agreed that Steele did not need the advanced life support offered by the MICU, and so they left Steele with the ambulance squad.
On the way back to the hospital, Contini filled out a blue sheet with regard to the second patient, Kenny Steele's father, whom they had not attended to. Contini wrote "Resp" (respiratory) in the space for the purpose of the dispatch, because that had been the subject of the initial dispatch. In the section labeled "CANCELED PRIOR TO ARRIVAL," Contini first wrote in "BLS" (basic life support, a reference to the ambulance squad), but then crossed it out and wrote "error" when he realized that he should have filled out the next section, for calls canceled "UPON ARRIVAL." Fromm reviewed the blue sheet, signed it, and gave it back to Contini.
According to Fromm he filled out a white sheet for the incident, describing his and Contini's treatment of Kenny Steele for smoke inhalation. In the top right-hand corner, in the space for "Report #," Fromm wrote "91-" but left the rest of the number blank because he was in the emergency room and the log book with the incident numbers was in the office. Instead of putting the form in the coordinator's box for his signature, Fromm said he inadvertently left it in the emergency room where they had taken Steele.
In his deposition (read into evidence because Contini had moved to Colorado before trial), Contini substantially corroborated Fromm's account of how he and Fromm had been "called off" the second patient and examined Kenny Steele only. Contini filled out a blue sheet on the second patient, at first filling in the wrong section but finally indicating that the second call had been canceled on arrival by the ambulance team. He said that he had told plaintiff that the form had been properly completed. Plaintiff, however, testified that Contini told her the white sheet had been made up after she reported the incident.
Plaintiff reported the suspected impropriety to her supervisor, defendant Gary Del Moro, Coordinator and Assistant Director of the MICU. He told her that he would investigate and get back to her. Del Moro testified at trial that upon receiving plaintiff's complaint, he called Fromm, told him of her complaint and asked him if he had completed the proper forms. Fromm told him he had. Del Moro also advised Dorothy Voorman-Fish, the President of Nursing Services, of the potential infraction. The next morning Del Moro investigated the complaint. As he began his investigation, he located only the blue sheet. He then telephoned the dispatching agency, and confirmed that the dispatch was for two people, one who had respiratory problems and one who fell. Since Del Moro could not locate the white sheet in the MICU office or the emergency room, he went to the medical records department at the hospital to look through the patient charts. Inside of the patient's medical record was the white sheet. Although the dispatch report number was missing, the white sheet was otherwise complete. The missing dispatch number was later filled in by Nancy Del Moro, a full-time MICU nurse (and Gary Del Moro's wife), on November 8, 1992, nearly a year later. *fn1
Del Moro made a written report of the accusation and what his investigation revealed to Voorman-Fish. Thereafter, Voorman-Fish reviewed six months of MICU incident reports to make certain the hospital policies were being followed. Plaintiff was made aware of Del Moro's findings and claimed to have been chastised for making the report. Plaintiff was not disciplined for making the accusations against Fromm and Contini, but Del Moro wrote in his December 7, 1991 report to Voorman-Fish:
"Josephine's actions have markedly polarized this MICU. Several staff have refused to work with her, [o]thers have elected to confront her. My clinical evaluation of Josephine is that of an employee that meets expectations, however, this type of unsubstantiated accusations in addition to Josephine's history of not following the chain of command make her a less than desirable employee."
Following the incident, both Fromm and Contini wrote to Del Moro requesting that they no longer be scheduled to work with plaintiff. During his deposition, Contini expressed his opinion that plaintiff was not a good MICU employee, claiming she had poor communication skills and a lack of direction in treating patients. He felt his opinion was shared by other employees in the MICU.
On January 15, 1992, plaintiff and Fromm were dispatched to aid someone experiencing chest pain. Plaintiff was standing on one side of the patient's bed and Fromm on the other, when plaintiff saw Fromm open the patient's bottle of pills, empty them into his left hand and place them in his pocket. Plaintiff was very upset, never having seen such conduct. Though there were police present, plaintiff did not say anything at the time because "I was taking care of my patient and I was trying to think through what I had just seen." Upon arrival at the hospital, plaintiff called her nursing supervisor, Linda Sacchieri. Sacchieri told her to return to work and that she would "handle the situation." The hospital has specific policies and procedures to follow in connection with allegations of an employee's drug abuse or unlawful activities. Sacchieri testified at trial that immediately after plaintiff's report, she contacted Voorman-Fish for advice. After talking to Voorman-Fish, Sacchieri immediately took Fromm into her office. She and another supervisor questioned him about the alleged theft of medication, and made him empty his pockets. This was audio-taped. Fromm denied taking drugs and had nothing in his pockets.
The next morning, Voorman-Fish directed Del Moro to contact the Paramus police and volunteer ambulance squad and try and get statements. Voorman-Fish also reviewed the MICU incident report, the white sheet, and particularly focused on the drugs that were listed as the patient's medications.
That same morning Voorman-Fish also telephoned plaintiff and asked her to document the incident and submit that in writing to her by 5:00 p.m. that day. Later that same day, plaintiff telephoned Voorman-Fish and told her that she would not submit anything until she could speak with her attorney. Because Voorman-Fish had not received anything in writing from plaintiff on January 15, 1992 she wrote to plaintiff on January 16, 1992 and chastised her for not responding. In fact, plaintiff did respond to Voorman-Fish; the letter was dated January 16, 1992 and was found on a desk in the nursing office on January 17, 1992.
In response to Voorman-Fish's directions, Del Moro did contact the Paramus police and the ambulance squad that responded with plaintiff and Fromm on January 15, 1992. He found no information to corroborate what plaintiff had reported.
At trial Fromm denied plaintiff's theft accusation. He explained that he opened the patient's prescription bottles and emptied their contents into his hand in order to determine if the patient had taken too many or not enough pills, which he could determine by looking at the dates on the bottles and then counting the number of pills remaining. He opined that it "would have been irresponsible" of him not to examine the patient's medications. Fromm then poured the pills back into their bottles and replaced the lids; he denied putting any pills in his pockets.
Following its investigation of plaintiff's allegations, the hospital concluded that Fromm did not steal prescription medications from the Paramus residence. Although plaintiff was advised of the hospital's Conclusion following its investigation, she objected to it, still believing that Fromm had stolen a patient's drugs and felt the investigation had been whitewashed because she was never asked to participate in it.
The result of the investigation was conveyed to plaintiff by Voorman-Fish in a letter dated February 14, 1992. Shortly thereafter, someone posted the letter in the coffee room. Both Voorman-Fish and Del Moro denied doing that. The letter was ...