On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2743-03.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Axelrad and Payne.
This appeal involves the maintainability as a class action of a complaint asserting tort claims for invasion of privacy by an unreasonable intrusion upon the seclusion of another and by giving unreasonable publicity to another's private life.
The two putative class representatives, Michael Castro and Julio Costa, were admitted to the emergency room at Jersey Shore Medical Center in July 2001. Castro had a severe stab wound to his abdomen inflicted by his girlfriend and Costa had a serious hand injury caused by catching his hand in a cement mixer. While plaintiffs were in the emergency room, they were videotaped by defendants NYT Television, The New York Times Company and Discovery Communications (referred to collectively as "NYT"), with the permission of defendants Jersey Shore Medical Center and Meridian Health System (referred to collectively as "Jersey Shore"), for a television show called "Trauma: Life in the ER," which was shown on the Learning Channel.
Plaintiffs signed forms consenting to this videotaping. However, Castro alleges that his consent was given in exchange for NYT's agreement that no information concerning the circumstances of his stabbing would be broadcast and that the footage would be used solely for medical training purposes, and that NYT violated those conditions. Costa, whose native language is Portugese, alleges that he did not understand the consent form because he cannot read English and no one explained or translated the form for him. He also alleges that he believed the persons who did the videotaping were working for the hospital, not a television show. Some of the videotape footage of both Castro and Costa was broadcast in one of the "Trauma: Life in the ER" television shows.
Plaintiffs' complaint asserted liability on the basis of numerous legal theories. However, we concluded in a prior interlocutory appeal that various counts of the complaint failed to state a cause of action. Castro v. NYT Television, 370 N.J. Super. 282 (App. Div. 2004). As a result of that decision, plaintiffs' only remaining claims are for 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 common law fraud.*fn1 Id. at 290.
Plaintiffs' complaint sought 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*fn2 were filmed in connection with the production of the television show, 'Trauma: Life in the ER.'" Plaintiffs' counsel also filed individual actions, containing allegations nearly identical to the complaint in this action, on behalf of eight other patients who were videotaped in the Jersey Shore emergency room. Id. at 287.
At the conclusion of discovery, plaintiffs moved for class certification. In this motion, plaintiffs sought to expand the proposed class to include not only every patient who was videotaped for "Trauma: Life in the ER" in any hospital anywhere in the country but also every patient who had been "observed" by any of the NYT film crews while videotaping for this television show.
The trial court granted plaintiffs' motion with respect to every patient videotaped or observed at Jersey Shore, but denied certification of a nationwide class consisting of every patient videotaped or observed in any hospital in the United States. The order granting class certification contains the following description of the class:
All persons wherever situated who, at any time from June 26, 2001 through July 27, 2001, while patients at the Jersey Shore Medical Center, had their confidential medical procedures, treatment or information disclosed to and/or observed by persons on behalf of NYT Television; the New York Times Company or Discovery Communications, Inc. in connection with the production of a television show called, "Trauma: Life in the ER."
We granted defendants' motions for leave to appeal the order certifying this class and plaintiffs' cross-motion for leave to appeal the order denying the part of their motion that sought certification of a nationwide class. We now consolidate NYT's and Jersey Shore's appeals.
On appeal, defendants argue that the trial court erred in certifying any class at all because issues common to the putative class do not predominate over issues affecting only individual members, and a class action would not be superior to an individual action for the fair and efficient adjudication of the controversy. In the alternative, defendants argue that even if the court properly granted class certification, it erred in expanding the class to include patients who were ...