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Kinsella v. Welch

July 15, 2003

JOSEPH KINSELLA, PLAINTIFF-RESPONDENT,
v.
STUART WELCH, DEFENDANT, AND NYT TELEVISION AND THE NEW YORK TIMES COMPANY, DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1836-02.

Before Judges Skillman, Cuff and Lefelt.

The opinion of the court was delivered by: Skillman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 3, 2003

Defendants NYT Television and the New York Times Company appeal, by leave of court, from the parts of an order entered on December 19, 2002, which determined that a videotape of plaintiff's treatment at Jersey Shore Medical Center (Jersey Shore) is not protected by the Newsperson's Privilege, N.J.S.A. 2A:84A-21 to 21.8, commonly known as the Shield Law, and therefore must be produced for examination by plaintiff.

On July 9, 2001, plaintiff was spraying insecticide on the roof of a building owned by defendant Stuart Welch. Plaintiff inhaled some of the insecticide, became dizzy and fell off the roof, sustaining severe injuries. Plaintiff was taken to Jersey Shore for treatment. When he arrived, defendant NYT Television, a division of defendant The New York Times Company (referred to collectively as NYT), was in the emergency room videotaping for a television program called"Trauma: Life in the E.R.," which is shown on The Learning Channel. In the course of that videotaping, NYT made videotape footage of plaintiff.

The day after his admission to Jersey Shore, plaintiff signed a form consenting to this videotaping. There is a dispute concerning the circumstances surrounding the signing of this form. Plaintiff alleges that he was heavily medicated and"in and out of consciousness" at the time. Plaintiff also alleges that the NYT producer who brought the form to him, Amanda Zinoman, said he"would receive better medical treatment and better doctors" if he signed it. Zinoman claims that plaintiff was no longer in intensive care and was lucid when he signed the form. Zinoman also denies telling plaintiff he would receive better medical treatment if he signed the form, but admits she"may have mentioned to [plaintiff] that often times doctors appear to me to pay more attention to patients when they are being filmed."

NYT produced two episodes of"Trauma: Life in the ER" from the videotape footage taken at Jersey Shore. No videotape footage of plaintiff was included in either program.

Plaintiff brought this action against Welch for the personal injuries he suffered as a result of his fall from the roof and against NYT for invading his privacy by videotaping him while he was in the hospital emergency room. Plaintiff subsequently filed an amended complaint which claimed that NYT's videotaping also violated the Wiretapping and Electronic Surveillance and Control Act (Wiretapping Act), N.J.S.A. 2A:156A-1 to -34. In addition, the amended complaint asserted common law fraud, concealment and misrepresentation claims based on NYT's actions in obtaining his consent to the videotaping.

In discovery, plaintiff requested production by NYT of"[a]ny and all photos and videos depicting Joe Kinsella's medical treatment and... injuries sustained in [his] accident including... that made in connection with the'Trauma, Life in the ER' TV shows." Plaintiff's request to produce also asked for"[c]opies of any and all photographs, films, video tapes or recordings of any nature whatsoever which defendant may offer into evidence at the trial of this case." NYT objected to production of these videotapes on the ground that they are protected by the Shield Law. Plaintiff then moved for an order compelling production.

The trial court concluded in a written opinion that NYT is part of the"news media" and that its videotaping in the Jersey Shore emergency room for"Trauma, Life in the ER" constituted"news" and therefore the videotape of plaintiff's treatment was subject to the privilege provided by the Shield Law for information obtained in the course of newsgathering.

Nevertheless, the court concluded that the privilege does not bar the release of the videotape of plaintiff's treatment because production of that videotape would not require disclosure of"confidential sources or information" and plaintiff's invasion of privacy claim has"constitutional roots" which override the statutory privilege provided by the Shield Law. Accordingly, the court entered an order compelling NYT to produce the videotape of plaintiff's treatment at Jersey Shore. The order also required NYT to produce"any photos or videos [it] intends to offer into evidence [at trial]."

We granted NYT's motion for leave to appeal from this order. We also granted a motion by the New Jersey Press Association and Reporters Committee for Freedom of the Press to participate in the appeal as amicus curiae in support of NYT's position.

NYT and amicus curiae argue that NYT's videotaping in the Jersey Shore emergency room constitutes newsgathering that is protected from disclosure by the Shield Law. They also argue that plaintiff's invasion of privacy claim does not have constitutional roots that override the protections of the Shield Law. In his answering brief, plaintiff argues, as alternative grounds for affirmance, that NYT's videotaping violated the Wiretapping Act and therefore is not protected by the Shield Law. Plaintiff ...


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