On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
In 1999, plaintiff, Jennifer Fitzgerald filed a complaint against her former employer, defendant Stanley Roberts, Inc., and its president, defendant Edward Pomeranz, alleging that they violated the Law Against Discrimination (LAD) while she worked for them from 1996 to 1998. In addition, she claimed intentional infliction of emotional distress and assault and battery. Fitzgerald claimed that the Pomeranz firm carried out a campaign of sexual harassment against her and that when she reported an incident of harassment to Leman Lane, the company controller, her employment was terminated less than two weeks later.
Before trial, Fitzgerald filed a motion to prevent defendants from offering testimony regarding specific instances of her lying and to bar character evidence based on those incidents. After the trial judge ruled that specific instances of lying would be inadmissible, defense counsel asked whether it would be permissible to offer opinion testimony as to Fitzgerald's reputation for truthfulness without inquiring about specific instances. Defendants were prohibited from offering that evidence. Defendants also unsuccessfully sought to call Dr. William Nadel, a psychiatrist who had originally been scheduled to testify as Fitzgerald's expert but had modified his diagnosis to one less favorable to Fitzgerald after having reviewed additional evidence in preparation for a deposition. The trial judge also prevented defendants from presenting a handwriting expert to refute Fitzgerald's testimony, denied by Lane, that Lane signed her disability forms.
During the trial, Fitzgerald produced witnesses to testify about gossip involving Pomeranz's sexual relationship with a former employee, T.S. Fitzgerald testified that T.S. had admitted to engaging in acts of workplace prostitution with Pomeranz. In addition, she was permitted to introduce testimony by other female employees about Pomeranz's sexual harassment of them. The jury returned a verdict in Fitzgerald's favor on retaliation and hostile work environment sexual harassment and awarded damages totaling $150,000.
Defendants appealed and the Appellate Division affirmed.
HELD: Because we agree with defendants that a series of errors infected this trial, we have no confidence that the jury verdict was reached in a legally sustainable fashion; thus we reverse and remand for a new trial.
1. The trial judge held that Graham v. Gielchinsky, a 1991 New Jersey Supreme Court decision, prevented defendants from calling Nagel because he was originally a plaintiff's expert. In Graham, we held that a consulting witness is prohibited from testifying for an adversary at trial absent the same "exceptional circumstances" that would have allowed discovery of that expert's identity and opinion under Rule 4:10-2(d) (3). We reaffirm Graham while adding that the rule has no applicability to a testifying witness. No party in litigation has anything resembling a proprietary right to any witness' evidence. By declaring that an expert witness will be produced at trial and providing the expert's identity and opinion to another party, the original proponent has waived his claim that the information is privileged. We hold that access to the testifying witness is allowed and the adversary may produce a willing expert at trial. (pp. 8-14)
2. The more difficult issue is whether the party calling his opponent's prior expert may inquire regarding the original retention. It is the expert's opinion and not his retention that should be the focus of the jury. We adopt the approach of those courts that generally restrict inquiry regarding the circumstances of the witness' initial retention. That rule will not apply where the original retaining party opens the door by challenging the qualifications of the expert. We leave it to the trial judge to determine, under the specific circumstances of cross-examination, whether the party has opened the door to evidence of the expert's prior retention. If such evidence is admitted, the judge should provide an appropriate limiting instruction, including a statement to the effect that the change of side, in itself, is no reflection on the adverse party. In sum, in this case, the trial judge was mistaken in her interpretation of Graham and should have allowed Dr. Nadel to testify on defendant's behalf without inquiry regarding the original retention, unless Fitzgerald placed it at issue. (pp. 15-23)
3. An opinion witness offers a personal assessment of a prior witness' character based on his or her own perceptions. Contrariwise, a reputation witness restates the community's assessment of the subject's character. Several errors occurred in connection with defendants' proffer of witnesses to testify regarding Fitzgerald's character for untruthfulness. The parties and the judge appeared to conflate opinion and reputation testimony. They are discrete methods of challenging character with discrete foundational requirements. Second, the judge mistakenly issued a blanket order barring defendants' character witnesses because she believed that their testimony would be based on specific instances of conduct, despite defense counsel's promise that he would not elicit testimony regarding such specific instances. To be sure, evidence regarding specific instances of conduct may not be used to prove a trait of character under either of the two relevant evidence rules. What is not barred is the distillate: the opinion and reputation derived from the specific instances. (pp. 26-32).
4. Defendants should have been permitted to present both opinion and reputation evidence regarding Fitzgerald's character for truthfulness ithout reference to specific instances of conduct so long as the foundational requirements were satisfied. The blanket order barring all of the defendant's character testimony was erroneous. In a case like this where credibility was pivotal, we cannot say that the error was harmless. (pp. 32-33)
5. Gossip is idle talk or rumor, especially about the personal or private affairs of others. When it is proffered in a judicial proceeding to establish the truth of the matter asserted, it is generally inadmissible. However, gossip, like other hearsay evidence, may be admissible if it is adduced not for its truth but for another purpose. Because Pomeranz's alleged harassment involved unambiguous actions like assault and battery, the gossip evidence was of limited probative value, if any, regarding Fitzgerald's subjective understanding of Pomeranz's other actions. However, the evidence that people gossiped about sexual matters was relevant to establishing the general character of the workplace, to the effectiveness of the sexual harassment policy, and to rebutting testimony that the office atmosphere was subdued. When evidence has both an impermissible and a permissible purpose, a jury instruction in respect of the limitations on its use is essential. (pp. 36-38)
6. Here, extensive gossip about the purported relationship between Pomeranz and T.S. was elicited by Fitzgerald. In summation, she argued that the gossip was actually true. Given that credibility was at the heart of the case, the unlimited gossip evidence was clearly capable of producing an unjust result. (pp. 39-40)
7. The trial judge correctly instructed the jury with respect to other female employees' testimony that Pomeranz sexually harassed them. Evidence of harassment of other women was relevant on the issue of the effectiveness of the firm's sexual harassment policy and on whether there was a problem with sexual harassment at the firm. (pp. 41-42)
8. We defer to the trial judge's exercise of discretion in excluding testimony from a handwriting expert that Lane's signatures on Fitzgerald's insurance forms were probably forged. However, if this issue arises on remand, the trial judge should require and consider proofs to inform the evidentiary balancing determination. (pp. 43-44)
9. In light of the errors to which we have adverted (the exclusion of Dr. Nagel, the barring of the opinion and reputation witnesses, and the admission of gossip evidence without a limiting instruction) we have no confidence that the jury verdict in this case was reached in a legally sustainable way. (p. 44)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED for a new trial to be conducted in accordance with the principles set out in this opinion.
JUSTICE WALLACE, CONCURRING in the result, parts company with the majority's holding that it was error to prohibit defendants from using Fitzgerald's expert as a witness.
CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ZAZZALI, and RIVERA-SOTO join in JUSTICE LONG's opinion. JUSTICE WALLACE filed a separate concurring opinion. JUSTICE ALBIN did not participate.
The opinion of the court was delivered by: Justice Long
Plaintiff filed a complaint against her former employer in which she advanced a series of claims arising out of what she categorized as sexual harassment in the workplace. The jury returned a verdict in her favor and the trial judge awarded her attorneys' fees under the Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49. Defendants appealed, challenging a number of evidentiary rulings that they claimed skewed the outcome of the case, including the trial judge's refusal to allow them to call plaintiff's trial expert as a witness; her exclusion of opinion and reputation testimony regarding plaintiff's character for untruthfulness; her admission of testimony about alleged harassment of other female employees; her admission of office gossip; and her refusal to allow defendants to produce a handwriting expert as part of their attack on plaintiff's credibility. Defendants also challenged the counsel fee award as excessive. The Appellate Division affirmed. Because we agree with defendants that a series of errors infected this trial, we have no confidence that the jury verdict was reached in a legally sustainable fashion. Thus we reverse and remand for a new trial.
The case began in 1999 when plaintiff, Jennifer Fitzgerald, filed a complaint against her former employer, defendant Stanley Roberts, Inc., a flatware importer and distributor, and its president, defendant Edward Pomeranz ("Pomeranz"), alleging that they violated the LAD while she worked for them from 1996 to 1998. Plaintiff claimed that defendants subjected her to a hostile work environment, quid pro quo sexual harassment, and retaliatory discharge. In addition, she claimed intentional infliction of emotional distress and assault and battery.
Defendants denied all of plaintiff's allegations and a lengthy and hard fought trial ensued at which extensive evidence was adduced by both sides.
In brief, plaintiff testified that immediately following commencement of her employment, Pomeranz, who was an equal owner of the company with his father, Harold Pomeranz, began a campaign of sexual harassment against her. She claimed Pomeranz carried out his harassment in numerous ways such as making comments about her legs, continuously calling her at home to invite her out on dates, taking her to a massage parlor, and ordering her to take off her clothes and report to his office.
Plaintiff indicated that she was aware of a memo distributed by the company regarding sexual harassment that required notification of any such harassment to a supervisor or officer of the company. According to plaintiff, many employees did not take the policy seriously because any complaints about Pomeranz would likely be reported to his father, a person they viewed as unlikely to take any action to remedy the situation. Nonetheless, plaintiff claimed she reported an incident of harassment to Leman Lane, the company's controller, and her employment was terminated less than two weeks later. Lane denied that plaintiff ever complained to him about Pomeranz's behavior or sexual harassment.
According to plaintiff's testimony, at the time she was terminated, Pomeranz informed her that she was "being downsized" and added that she was now free to sleep with him because he was no longer her boss. Plaintiff believed that the company was not downsizing because Lane had hired a second assistant two months earlier. At trial, Lane admitted that a new person was hired several months after plaintiff's termination to do plaintiff's job.
During the trial, plaintiff produced witnesses to testify about gossip involving Pomeranz's volitional sexual relationship with a former employee, T.S. Plaintiff testified that T.S. had admitted engaging in acts of workplace prostitution with Pomeranz. In addition, plaintiff was permitted to introduce testimony by other female employees about Pomeranz's sexual harassment of them.
In seeking damages, plaintiff alleged that she suffered insomnia, fatigue, and an inactive thyroid gland along with a recurrence of symptoms related to the Epstein-Barr virus*fn1 as a result of defendants' treatment of her. At trial, plaintiff's expert, Dr. Richard Podell, testified that she suffered from chronic fatigue syndrome due the stress of the harassment.*fn2
Defendants produced witnesses who testified that they had not seen the side of Pomeranz that plaintiff depicted and described the office atmosphere in rather banal terms. For his part, Pomeranz strongly denied the truth of plaintiff's allegations, as well as those made by other women.
Defendants also vigorously attacked plaintiff's credibility. Among other things, they proffered evidence that plaintiff was claiming injuries for which she had recently successfully sued her landlord.*fn3 Further, defendants pointed out that despite claiming numerous ill effects from the alleged sexual harassment and her subsequent termination, approximately ten days after completing her insurance forms for total disability, plaintiff traveled to Florida where she underwent breast augmentation surgery. Approximately three days after her surgery, plaintiff returned to New Jersey and a few days later went back to Florida for a vacation with her nieces at Disney World.
Defendants produced their own expert, Dr. Paula Bortnichak, regarding plaintiff's alleged damages. Dr. Bortnichak characterized plaintiff's claims as exaggerated and diagnosed plaintiff as suffering from hypokalemia*fn4 due to the use of diuretics like diet pills and laxatives, rather than chronic fatigue syndrome. Dr. Bortnichak concluded that plaintiff did not suffer from severe depression and was not disabled.
Finally, defendants sought to call Dr. William Nadel, a psychiatrist who had originally been scheduled to testify as plaintiff's expert. Dr. Nadel had modified his initial diagnosis after reviewing information provided during discovery. The trial judge would not permit defendants to call Dr. Nadel based on our decision in Graham v. Gielchinsky, 126 N.J. 361 (1991). The trial judge also prevented defendants from presenting a handwriting expert to refute plaintiff's testimony, denied by Lane, that Lane had signed her disability form.
The jury returned a verdict in plaintiff's favor on retaliation and hostile work environment sexual harassment but ruled for defendants on quid pro quo sexual harassment, intentional infliction of emotional distress, and assault and battery. It awarded plaintiff economic damages of $50,000 and emotional distress damages of $100,000. The trial judge also awarded plaintiff counsel fees of $462,927.15. Defendants appealed and the Appellate Division affirmed.
Defendants argue that Graham, supra, 126 N.J. 361, is no impediment to their calling plaintiff's testifying expert; that reputation and opinion testimony regarding plaintiff's character was improperly excluded; that false and salacious gossip should not have been admitted at trial; that witnesses should not have been permitted to testify that they too had been sexually harassed by Pomeranz; that defendants' handwriting expert should have been allowed to testify; and that the amount of counsel fees and costs awarded was unreasonable.
Plaintiff counters that Graham bars defendant from calling an adversary's trial expert as a witness; that office gossip and the testimony of witnesses who had been harassed by Pomeranz was admissible to show the nature and character of the workplace and to prove a hostile work environment; that opinion and reputation testimony regarding plaintiff's truthfulness was properly excluded because it violated the evidence rules; that the exclusion of defendants' handwriting expert was an affirmable exercise of discretion by the trial judge; and that the award of counsel fees and costs was fully supported by the record.
We turn first to defendants' contention that they should have been allowed to call Dr. William Nadel, a psychiatrist originally retained to testify on plaintiff's behalf. In a preemptive move before trial, plaintiff announced that although she was uncertain whether she would call Dr. Nadel, defendants should be barred from calling him if she elected not to do so.
After reviewing additional evidence in preparation for a deposition, Dr. Nadel had modified his diagnosis to one less favorable to plaintiff. Dr. Nadel's initial report from August 2001 stated that he reached his diagnosis following approximately three hours of interviews with plaintiff and the review of her deposition from 1999, a letter from plaintiff's examining physician, Dr. Podell, and statements from four female co-employees. In his original report, Dr. Nadel stated that he agreed with Dr. Podell that plaintiff was suffering from chronic fatigue syndrome. Dr. Nadel additionally diagnosed major depressive disorder as evidenced by plaintiff's daily depressed mood, diminished interest in formerly pleasurable activities, weight gain, and sleeping difficulties. He further concluded that plaintiff suffered from chronic post-traumatic stress disorder because plaintiff felt that Pomeranz's actions "threat[ened] . . . her physical integrity."
Despite those initial conclusions in plaintiff's favor, Dr. Nadel modified his opinion at his May 2002 deposition, stating that his review of additional materials caused him to withdraw his original diagnosis of major depressive disorder. Dr. Nadel then theorized that, rather than a hostile work environment, plaintiff's conditions may have resulted from hypokalemia and low blood pressure, which are side effects of some of her medication. Dr. Nadel further stated that he might diagnose plaintiff either as suffering from somatization*fn5 or as a malingerer,*fn6 but emphasized that his opinion was not definitive. Dr. Nadel based his change in theory, in part, on plaintiff's very similar injury claims in the lawsuit against her landlord, and on plaintiff's trips to Florida, which demonstrated a lack of prolonged bouts of depression.
After some procedural maneuvering that need not be recounted here, defendants proposed calling Dr. Nadel as their own witness.*fn7 The trial judge held that Graham prevented defendants from calling Dr. Nadel because he was originally plaintiff's expert. The Appellate Division agreed.
Defendants contend here that Graham only applies to nondiscoverable expert testimony which is work product, but not to an expert whose opinion was fully revealed in discovery and who was intended as a trial witness. Plaintiff counters that Graham is clear that "exceptional circumstances" are required before a party may call an adversary's expert at trial, irrespective of whether that expert's opinion is discoverable or nondiscoverable. The defendants have the better of the argument.
In Graham, supra, 126 N.J. 361, we detailed the development of the rules insulating consulting experts and their opinions from discovery. That history is a useful starting point for our discussion here. At common law, courts were hesitant to allow an adversary to discover the opinions of an opponent's expert. Id. at 365. Both the attorney-client privilege and the work product rule were developed, in part, to discourage parties from attempting to build their cases by foraging through the fruits of their opponent's efforts. Id. at 365-66.
Courts gradually came to recognize, however, that for an adversary to effectively cross-examine an expert, he or she required advance notice of the opposing expert's identity and the substance of his or her opinion. Id. at 365. Hence, our court rules have been developed to provide for an orderly system of discovery that protects confidential information yet allows for adequate cross-examination of testifying experts. Rule 4:10-2(d) protects the work of consulting experts from discovery:
A party may discover facts known or opinions held by an expert (other than an expert who has conducted an examination pursuant to R. 4:19) who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial only upon a showing of exceptional circumstances under which it is impractical for the party seeking discovery to obtain facts or opinions on the same subject by other means.
At the same time, the discovery rules require that the substance of a testifying expert's opinion be conveyed to the adversary before trial:
A party may through interrogatories require any other party to disclose the names and addresses of each person whom the other party expects to call at trial as an expert witness, including a treating physician who is expected to testify . . . . The interrogatories may also require, as provided by R. 4:17-4(a), the furnishing of a copy of that person's report.
Examination of the expert is also ...