On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, C-223-06.
The opinion of the court was delivered by: S.L. Reisner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2007
Before Judges Weissbard, S.L. Reisner and Baxter.
Defendant Raymond Sauter (defendant or Sauter) appeals from a December 14, 2006 trial court order, granting plaintiff Carolyn Amm Ausley's application authorizing the release to Ausley's medical expert of laboratory specimens taken in connection with the autopsy of decedent Joyce Sauter. The county medical examiner, named as a defendant in the trial court, did not object to entry of the order and has not appealed from it. We affirm.
This case is a dispute between decedent's sister and decedent's husband. Although decedent had terminal cancer, plaintiff expressed continuing concerns as to the level of care decedent received just prior to her death and whether that care may have hastened her death. To that end, although an autopsy performed by the county medical examiner revealed no evidence of over-medication or foul play of any kind, plaintiff retained her own medical expert and sought access to tissue and vitreous specimens taken in connection with the autopsy in order to perform her own investigation. The county counsel advised plaintiff that the specimens were not public records for purposes of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1.1, and pursuant to its standard practice, the county medical examiner declined to produce the specimens without a court order.
Accordingly, plaintiff initiated this action by filing a verified complaint and order to show cause (OSC). The OSC, which was entered on September 21, 2006, by its terms included temporary injunctive relief ordering the county medical examiner to preserve the specimens pending further court order. The OSC also required defendants to appear on October 25, 2006, and show cause why the specimens should not be turned over to plaintiff's expert for testing. In other words, the OSC contemplated a summary proceeding that would be decided on the return date. Sauter filed an answer to the complaint and opposition to the OSC. Decedent's daughter, also a named defendant, filed an answer indicating that she did not wish to be involved in the dispute. The county counsel filed a letter with the court indicating that neither the county nor its medical examiner objected to plaintiff's application.
In an oral opinion placed on the record on December 14, 2006, the trial judge granted the application. Analyzing the application as one for a preliminary injunction, he concluded that plaintiff's interest in obtaining closure with respect to her concerns about her sister's death outweighed defendant's interest in preventing her from obtaining the specimens.
We begin by considering the procedure followed in this case, which was commenced by verified complaint and order to show cause. As we observed in Solondz v. Kornmehl, 317 N.J. Super. 16, 20 (App. Div. 1998), the right to commence an action by order to show cause is limited by the Rules of Court to injunction applications, R. 4:52-1, and actions in which a statute, regulation or Court Rule permits the matter to be brought in a summary manner. R. 4:67-1(a). Since plaintiff's first concern in this case was to preserve the status quo by preventing the medical examiner from destroying the specimens pendente lite, she properly sought that temporary injunctive relief by order to show cause. See R. 4:52-1.
However, the underlying substantive relief sought, i.e., release of the specimens, did not involve preliminary injunctive relief but rather final relief. Neither plaintiff's application to the trial court nor her appellate brief cited any legal authority for pursuing that relief in a summary proceeding, although OPRA authorizes a summary action to obtain government records. N.J.S.A. 47:1A-6.*fn1 In any event, in the circumstances of this case, we conclude that the trial judge properly granted summary relief. The parties had placed before him all of the relevant evidence, there were no material facts in dispute as to the legal issue of whether the specimens should be released to plaintiff's expert, and the evidence permitted only one resolution of that question as a matter of law. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In fairness to the trial judge, we also note that the parties treated the application as one for preliminary injunctive relief and neither party briefed or argued the correct legal authority applicable to the complaint.
We next address the reasons for our conclusion on the merits, including the legal status of the specimens and plaintiff's right to obtain them. As the county counsel correctly advised plaintiff, medical specimens taken from a body during an autopsy are not included in the definition of "government records" under OPRA, N.J.S.A. 47:1A-1.1, except, among other situations, "for the use as a court of this State permits, by order after good cause has been shown" upon application made on notice to the county prosecutor. Ibid. In other words, OPRA treats medical specimens as "records," but not as the kinds of government records that are ...