On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket Nos. L-1836-02 and L-2743-03.
Before Judges Skillman, Coburn and C.S. Fisher.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendants NYT Television, The New York Times Company and Discovery Communications (the"media defendants") and defendants Jersey Shore Medical Center and Meridian Health System (the"medical defendants"), appeal by leave of court from parts of orders entered on October 6, 2003, which denied their motions to dismiss certain causes of action asserted in plaintiffs' complaints.
Before discussing the four causes of action involved in this appeal, we briefly summarize the allegations of the nine nearly identical complaints filed against defendants. All the plaintiffs were admitted to the emergency room at the Jersey Shore Medical Center (Jersey Shore) in the summer of 2001 suffering from severe physical trauma or serious illness. While in the emergency room, plaintiffs were videotaped by the media defendants, with the permission of the medical defendants, for a television show called"Trauma: Life in the ER," which is shown on the Learning Channel. Plaintiffs signed forms consenting to this videotaping at some point during their hospitalizations. However, plaintiffs allege that they were not competent to give such consents due to the severity of their injuries or illnesses and the heavy medications they were receiving at the time.
Plaintiffs also allege that the media defendants made various deceptive statements to induce them to sign the consents.
Plaintiffs' complaints asserted numerous causes of action, including claims under the Wiretapping and Electronic Surveillance and Control Act (Wiretap Act), N.J.S.A. 2A:156A-1 to -34, the Hospital Patients Bill of Rights Act, N.J.S.A. 26:2H-12.7 to -12.11, the Consumer Fraud Act, N.J.S.A. 58:8-1 to -20, common law fraud, commercial appropriation of plaintiffs' likenesses, invasion of privacy by an unreasonable intrusion upon the seclusion of another, invasion of privacy by giving unreasonable publicity to another's private life, and unjust enrichment. The Castro complaint seeks certification of a class of plaintiffs consisting of"all persons wherever situated who, at any time from January 1, 1998 to present, while patients at any hospital in the United States, were filmed in connection with the production of the television shown,'Trauma: Life in the ER.'"*fn1
The media and medical defendants filed motions to dismiss plaintiffs' complaints on the ground that they fail to state causes of action. In addition, the medical defendants moved to dismiss the class action allegations of the Castro complaint.
The trial court granted defendants' motions to dismiss plaintiffs' claims under the Wiretap Act and also dismissed Kinsella's claim for invasion of privacy by giving unreasonable publicity to another's private life. The court denied defendants' motions with respect to the other causes of action asserted in plaintiffs' complaints. In addition, the court denied the medical defendants' motion to dismiss the class action allegations of the Castro complaint, without prejudice.
The media and medical defendants both moved for leave to appeal from the parts of the October 6, 2003 orders that denied their motions to dismiss plaintiffs' claims for violations of the Hospital Patients Bill of Rights and Consumer Fraud Acts, commercial appropriation of plaintiffs' likenesses and unjust enrichment. In addition, the medical defendants appealed from the part of the order that denied their motion to dismiss the class action allegations of the Castro complaint. We granted both motions.*fn2
Before briefing by the parties, we granted Castro's motion for clarification and on January 20, 2004, entered an order that stated:"Since the trial court did not rule upon the appropriateness of class certification, that issue is not before this court on this interlocutory appeal." In addition, we granted motions by the media and medical defendants to consolidate the nine interlocutory appeals taken by each group of defendants, consolidating the appeals by the media defendants under A-1862-03T2 and the appeals by the medical defendants under A-1849-03T2. We now consolidate all the media and medical defendants' appeals into a single appeal.
We conclude that the Hospital Patients Bill of Rights Act does not authorize a private cause of action for a violation of its provisions and that plaintiffs' complaints do not state causes of action for a violation of the Consumer Fraud Act, commercial appropriation of plaintiffs' likenesses or unjust enrichment. Accordingly, we reverse the parts of the October 6, 2003 orders that denied defendants' motions to dismiss those claims. However, we conclude that the trial court did not abuse its discretion in deferring consideration of the part of the Castro complaint that seeks class certification and therefore affirm the denial of the medical defendants' motion to dismiss that aspect of the Castro complaint.
Before discussing the causes of action that are the subject of this appeal, we note that plaintiffs assert three causes of action that defendants acknowledge are viable at this stage of the case. Defendants did not seek leave to appeal from the parts of the trial court orders that denied their motions to dismiss plaintiffs' common law fraud claims. Defendants also admit that plaintiffs' complaints state causes of action for the common law torts of invasion of privacy by an unreasonable intrusion upon the seclusion of another, see Restatement (Second) of Torts § 652B ...