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Phillips v. Gelpke

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 9, 2008

MELISSA PHILLIPS, PLAINTIFF-RESPONDENT,
v.
JOHN GELPKE, DEFENDANT-APPELLANT/ THIRD-PARTY PLAINTIFF, AND BARBARA GELPKE, DEFENDANT/THIRD-PARTY PLAINTIFF,
v.
SUSAN PHILLIPS, THIRD-PARTY DEFENDANT.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-650-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 20, 2005

Decided January 30, 2006

Remanded by Supreme Court May 17, 2007

Re-argued October 16, 2007

Before Judges Fuentes, Grall and Chambers.

This appeal concerns plaintiff Melissa Phillips's cause of action against her uncle, defendant John Gelpke. In this suit, plaintiff alleges that defendant sexually abused her when she was a young child. The matter was tried before a jury and a verdict was entered in plaintiff's favor, awarding her $750,000 in compensatory damages. On direct appeal, we reversed, holding that plaintiff's "repressed memor[y]" was "a highly complex and controversial subject," requiring expert testimony. Phillips v. Gelpke, 383 N.J. Super. 505, 512 (App. Div. 2006). Because our holding invalidated the jury verdict, we did not address the remaining arguments raised by defendant.

On plaintiff's appeal, the Supreme Court reversed our decision, holding that a lay jury is capable of determining plaintiff's credibility as to how she came to remember the alleged abuse, without expert psychological testimony. Phillips v. Gelpke, 190 N.J. 580, 592-94 (2007). The Supreme Court thus remanded the case for us to address the remaining arguments originally raised by defendant in his direct appeal. Id. at 596.

We now address those arguments. Specifically, defendant argues that: (1) the jury verdict was against the weight of the evidence; (2) the trial court improperly admitted plaintiff's poetry and diary readings, including a critique of these exhibits by plaintiff's treating psychologist; (3) the trial court erred in permitting plaintiff to impeach her own witness; and (4) plaintiff failed to present competent evidence in support of her claims for damages.

After reviewing the record, and in light of prevailing legal standards, we agree with defendant that plaintiff's testimony concerning the poetry and diary entries should have been excluded under N.J.R.E. 803(c)(3) as inadmissible hearsay. We thus conclude that a new trial is needed in this case.

Our conclusion renders moot defendant's argument that the jury verdict was against the weight of the evidence. On remand, the quantum of evidence will necessarily be different, in light of our holding regarding the poetry and diary entries. We find no merit, however, in the remaining arguments raised by defendant.

With respect to the poetry and diary entries, we are satisfied that the admission of this highly inflammatory evidence deprived defendant of his right to a fair trial. The trial court's attempt at counteracting this prejudice, by instructing the jurors to consider this testimony only in the damages phase of their deliberations, was inadequate and ineffective. Even if such evidence had some limited probative value on the question of damages, its overwhelming prejudicial effect compels its exclusion under N.J.R.E. 403. Rosenblit v. Zimmerman, 166 N.J. 391, 410 (2001).

The core facts of this case were described in detail by the Supreme Court in Phillips v. Gelpke, supra, 190 N.J. at 584-89. We will thus limit our factual recitation to those facts necessary to address the issues raised.

I. The Poetry and Diary Entries

The acts of abuse alleged by plaintiff occurred when she was between the ages of three and eight years old. Overruling defense counsel's objection, the trial court permitted plaintiff to read to the jury the following lines of poetry. The actual reading of the first "poem" was preceded by the following exchange between plaintiff and her attorney.

[PLAINTIFF'S COUNSEL]: [D]o you know when you wrote [the poem]?

[PLAINTIFF]: I was either 15 or 16 [years old].

[PLAINTIFF'S COUNSEL]: Had you yet told your mother of the abuse by your Uncle John?

[PLAINTIFF]: Yes, I have.

[PLAINTIFF'S COUNSEL]: You talk in here, you refer to it, you talk about someone being a skeezy, sick man. Do you see that?

[PLAINTIFF]: Yes.

[PLAINTIFF'S COUNSEL]: And who are you talking about? Who are you referring to?

[PLAINTIFF]: John.

[PLAINTIFF'S COUNSEL]: Your Uncle John?

[PLAINTIFF]: Yes.

[PLAINTIFF'S COUNSEL]: This poem or entry is about your bulimia, isn't it?

[PLAINTIFF]: Yes.

The trial court then directed plaintiff to read the poems to the jury.

Number One

Do you ever think upon the past? Well, I do, and all it makes me do is purge and fast. All you are to me is a skeezy, sick man. When I remember you I think of one who - don't you see you took advantage of a little girl? Since you did that to me, if I eat, I have to hurl. It seems to me that you don't think about it, don't even care, because you are so selfish I formed an eating disorder, and that's not fair.

Can't you see that you took my childhood away from me. Now, no matter how much I eat, an ugly bump is all see. [sic] There is nothing you can ever do for me now, I have to get rid of my eating disorder and you, but how? I laughed at you because you need help and won't receive it, while I am now, and I'm sick of all your bull shit.

Number Two

A girl with a body, a girl a man wanted, he took her body and made it his. She let him have it not knowing any better. He loved to abuse her body, never caring when she would get older the girl would hate that body that he took advantage of. So as the years passed and abuse stopped, she tried to destroy the body he seemed to enjoy. She changed her body so he would not want her anymore.

The following exchange took place immediately after plaintiff finished reading the Second Poem.

[PLAINTIFF'S COUNSEL]: Thank you. And the he you're referring to in that poem?

[PLAINTIFF]: Is John.

[PLAINTIFF'S COUNSEL]: Who was it?

[PLAINTIFF]: John.

Number Three

Do you want to be me? Of course you do, everyone does. So you can take everything, my looks, my personality, my boyfriend, my friends, my body, my thoughts, my family, my pets, my hurt, my therapy, my fears, my pain, my problems, my feelings. Now you might think no problem, but before you couldn't do it. You don't love me.

What do you want from me? You say nothing, I don't believe you, everyone wants something. So what is it? Fine, don't answer me. Death, did you say? Why do you want me cold with nothing? I know you hate me, but I want and you want my soul, so I'll fight to get better and give my soul to someone else that loves me. You will never have it, so please just leave me alone. And do you think you can control me? But one day you will realize that you can't anymore. So just go away, I don't need you anymore. So stop trying to kill me, because you won't do it, for I'm fighting for my life now. Not yet.

The following exchange took place immediately after plaintiff finished reading the Third Poem.

[PLAINTIFF'S COUNSEL]: Who is the you you're referring to in that?

[PLAINTIFF]: My eating disorder.

[PLAINTIFF'S COUNSEL]: I'm sorry?

[PLAINTIFF]: My eating disorder.

[PLAINTIFF'S COUNSEL]: What's the next one?

Number Four

Don't rob her innocence away, but she will not stop you, she thinks that you will have her. Unfortunately, you don't give two shits about her. You just do it to get yourself, give yourself power. Do you like this power? Does it feel good to you? She is so little and doesn't know, you stupid son of a bitch, don't hurt her anymore. When I see you do this to her she is just a confused child. You sick - don't touch her and you won't listen to me, of course you won't. Fine, just do it, she does not care because you know it's wrong, just kill that little girl and make her grow up to be a slut.

Plaintiff's counsel then asked plaintiff the following questions:

[PLAINTIFF'S COUNSEL]: Who is the you that you refer to in that piece?

[PLAINTIFF]: John.

I just got rid of a cell, I'm clean again. Nothing matters when I'm clean. I kill the pain. I have no past that haunts me. There is no little girl in me. I killed her. Do not care, all she is is fat and dirty. But now I am clean and thin. I don't care if she needs me, because I don't need her, I hate her. She was so stupid, she's [sic] just lets people take her and then she eats to get fatter. But now I'm smart and pretty, also clean as can be. The little girl who will be dead, I have no sorrow or remorse, because I am clean and she is not.

[PLAINTIFF'S COUNSEL]: Did that refer to any person?

[PLAINTIFF]: My child, me as a child.

[PLAINTIFF'S COUNSEL]: And cleanliness refers to what?

[PLAINTIFF]: My bulimia.

As part of this collage of written material, and in an effort to provide a psychological context ostensibly limited to the issue of damages, plaintiff's counsel also elicited testimony from psychologist Dr. Madelyn Milchman. Following the voir dire as to her qualifications, plaintiff's counsel moved to have Dr. Milchman admitted as an expert witness "in the field of psychology and child sexual abuse." Defense counsel immediately objected to admitting the witness as an expert on child sexual abuse. Fearing that the witness would testify that plaintiff had experienced "symptoms" or exhibited "characteristics" that, in the doctor's opinion, are consistent with children who had been sexually abused, defense counsel requested that Dr. Milchman's testimony be limited to the general field of psychology.

In response, plaintiff's counsel argued that Dr. Milchman should be permitted to testify about "damages caused by sexual abuse." The trial judge agreed, issuing the following side bar ruling:

[S]he might be able to talk about the kind of psychological effects of sexual abuse that are relevant to damages. So if she has experience in the field because she has treated a number of other victims of sexual abuse, why can't she be qualified in the specific field within the very broad field of psychology? I think she can.

Although the ruling was intended to limit the scope and nature of Dr. Milchman's testimony to the issue of damages, the trial court did not instruct the jury on this limitation before the witness took the stand. Furthermore, despite this ostensible limitation, the record shows that plaintiff's counsel's questions elicited testimony from Dr. Milchman that went beyond the issue of damages.

Referring to the "poems" as "clinical evidence," plaintiff's counsel asked Dr. Milchman to opine whether the content of these writings substantiated the harm caused to plaintiff by the sexual abuse. Dr. Milchman thereafter commented extensively on each of the "poems." By way of example, referring to the "Third Poem," Dr. Milchman opined that the writing expressed "a kind of survivor mentality, somebody who has geared herself to endure a lot of pain." Dr. Milchman concluded that the poetry as a whole reflects "a very direct connection between [plaintiff's] self-destructiveness, her bulimia, and her experience of sexual abuse."

In the midst of Dr. Milchman's direct testimony, during a court-ordered break, defense counsel moved for a mistrial on the grounds that the expert's testimony critiquing the poetry only served to improperly corroborate plaintiff's account of the alleged abuse. The trial judge denied defense counsel's motion, explaining that, in his view, [t]he testimony of Dr. Milchman was really consistent with the ruling that I made regarding the journal entries and the poetry which was that they were admitted for the purpose of establishing [plaintiff's] state of mind at the time that she alleges damages occurred to her because of the sexual abuse.

They were not admitted to prove that the sexual abuse occurred, but to prove what her emotional and mental status was and her emotional and mental status are part of the damages that are alleged here.

In other words, she's seeking to recover compensation for psychological injuries, and the way that Dr. Milchman testified about the journal entries and the poetry was consistent with explaining that these were evidence to her, a qualified psychologist, of certain psychological conditions that can be viewed as injuries subject to compensation if the jury finds that they were caused by sexual abuse committed by [defendant].

I noticed that Dr. Milchman was careful in describing the abuse as the alleged sexual abuse. She didn't try to say that this was proof that the abuse occurred, but only that these were the conditions -- the psychological conditions that she believed [plaintiff] was in at the time that she wrote these journal entries and poems, and that's valid testimony that goes directly to her state of mind.

So they were admitted both during [plaintiff's] own testimony and during Dr. Milchman's testimony under a hearsay exception establishing her emotional status or state of mind at the time.

In light of the court's adverse ruling on his motion, defense counsel suggested that the court provide the jury with specific instructions on how to consider and evaluate the "poetry" evidence. As part of these instructions, the trial judge decided to advise the jury of the specific analysis required before evidence is admitted pursuant to N.J.R.E. 803(c)(3). The court overruled defense counsel's objection as to these additional charges, and gave the jury the following instructions:

I want to instruct you that these poems and diary entries are not to be considered by you as evidence that the alleged abuse occurred.

The poetry and diary entries were admitted only for the purpose of providing evidence offered by the plaintiff that [she] was suffering certain injuries at the time that she wrote these entries or poems, that is at about age 16 or 17.

I want to explain this to you further and bring to your attention the particular rules of evidence. . . .

[N]ormally hearsay is not admitted in evidence, but under our rules we do have some exemptions to that normal rule, and I relied on one of the rules to allow you to hear this poetry and the diary entries for the limited purpose that I've just indicated.

That exception says that you may consider these out-of-court statements if the statement is made in good faith of the declarant's then existing state of mind, emotion, sensation, mental feeling, pain or bodily health, but not including a statement of memory or belief to prove the fact remembered or believed.

That is the rule of evidence that I've applied her[e], and the instruction I've given you about the limited use of these statements is based on that rule.

Essentially, what it means is that the poetry and the journal entries can be considered by you if you find that they were made in good faith and that they are evidence of then existing state of mind, emotion, sensation, mental feeling, pain or bodily health of [plaintiff].

But you may not use those statements as proof of the memory or belief of a fact allegedly remembered or believed; namely, the fact of the sexual abuse.

Ultimately, the weight to be given to any evidence, whether it's in the form of written journal entries and poetry or in the form of sworn testimony by witnesses is for you to determine.

The court included similar instructions as part of its final charge to the jury.

Defendant argues that, despite the trial court's characterization and limitations, the poetry at issue directly linked defendant as the perpetrator of the alleged sexual abuse.

This prejudice was compounded by Dr. Milchman's subsequent testimony, which only served to give psychological legitimacy to the inflammatory language contained in the writings. We agree.

As a threshold issue, these writings do not qualify under N.J.R.E. 803(c)(3), as an exception to the general prohibition against admitting hearsay evidence. To qualify under the Rule, the statement or writing must be made "in good faith;" must relate to the "declarant's then existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed . . . ." N.J.R.E. 803(c)(3) (emphasis added).

Here, all of the "poems" or "journal entries" were written when plaintiff was approximately sixteen years old. They allude to, or, in some cases, directly identify events that allegedly occurred when plaintiff was between three and eight years old.

For example, exhibit Number One states: "When I remember you I think of one who - don't you see you [defendant] took advantage of a little girl?" Although the writings clearly contain references to experiencing present emotional pain and a newly discovered sense of lost innocence, the thrust of the content remained anchored in the past.

When examined objectively, these writings are, at their essence, poetic expressions of events allegedly experienced by an infant; they are nothing more than recollections viewed through the muddled lens of an apparently deeply troubled teenager. Dr. Milchman's testimony compounded the problem by giving an aura of psychological legitimacy to the accusatory tone permeating the writings. In short, this evidence should have been excluded as "a statement of memory" intended "to prove the fact remembered." N.J.R.E. 803(c)(3).

Even without this legal impediment, the trial court should have excluded these writings under N.J.R.E. 403. Under this Rule, "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of . . . undue prejudice . . . ." Thus, accepting, arguendo, that these writings contained some probative value on the question of damages, they should have nonetheless been excluded because their prejudicial effect is unmistakable and overwhelming.

Exhibit Number One refers to defendant as a "skeezy, sick man." Plaintiff accuses him of taking advantage of "a little girl." Exhibit Number Two accuses defendant of loving "to abuse her body, never caring when she would get older the girl would hate that body that he took advantage of." Exhibit Number Three accuses defendant of causing plaintiff's spiritual and emotional death, by taking her "looks, personality, boyfriend, friends, body, thoughts, family, pets, hurt, therapy, fears, pain, problems, [and] feelings." Exhibit Number Four accuses defendant of robbing plaintiff's "innocence;" defendant is characterized as selfish and uncaring: "you don't give two shits about her. You just do it to get yourself, give yourself power."

This steady barrage of ad hominem attacks had the clear capacity of inflaming the jury's passions against defendant.

The manner in which this evidence was presented to the jury also exacerbated its prejudicial effect. The issue of child sexual abuse unavoidably invokes strong, passionate feelings from any reasonable person. A trial in which the jury is required to decide whether such abuse has occurred must be carefully and closely monitored by the judge presiding over the trial. The judge's role is to ensure that a proper balance is maintained between a plaintiff's right to seek redress, and a defendant's right to a fair and impartial jury. Key to a proper resolution of this tension lies in preserving a professional atmosphere, devoid of needlessly theatrical events.

Here, the image of a young woman on a witness stand, reading to the jurors an emotionally laden recordation of childhood sexual abuse is an undeniably powerful and dramatic image. In this context, the alleged evidence (the poetry and other writings) is overwhelmed by the sheer emotional force of the presentation. If this evidence is otherwise admissible, it should have been provided to the jury as a documentary exhibit, sanitized of the needless drama generated by plaintiff's recitation.

We thus hold that the trial court should have excluded the poetry and diary entries under both N.J.R.E. 803(c)(3) and N.J.R.E. 403. The trial court's failure to do so amounts to reversible error.

II. Plaintiff's Impeachment of her Own Witness

Defendant contends that the trial court erred in permitting plaintiff to impeach the credibility of her grandmother, Betsy, whom she called as a witness as part of her case in chief. We disagree.

As part of her testimony, Betsy denied that plaintiff spent the night in defendant's hotel room during a family trip to New York. This directly contradicted plaintiff's testimony alleging that one of the incidents of abuse occurred during that trip, and in this location. At the conclusion of her testimony, the trial judge and counsel reviewed questions submitted by the jury, one of which asked whether Betsy took any medication or suffered from any ailments that affected her memory.

In response, plaintiff's counsel announced that he was going to recall plaintiff to discuss Betsy's memory.

Plaintiff's counsel proffered that Betsy's testimony regarding the trip to New York was completely at odds with what Betsy had told counsel previously; if not, he never would have called her as a witness. Counsel admitted, however, that he had not covered the trip to New York during Betsy's deposition.

At the conclusion of this discussion, the trial judge asked Betsy, in the presence of the jury, whether she was taking any medication, and whether she had any problems with memory. Betsy stated that she was on heart medication, but that, in her opinion, her memory was fine except for recalling dates long passed.

Thereafter, plaintiff's counsel requested permission to recall plaintiff so that she could testify generally regarding the state of Betsy's memory. Defense counsel objected, arguing that plaintiff was not qualified to make such an assessment.

The court overruled the objection, holding that as long as plaintiff demonstrated that she had sufficient contacts with the witness, she could testify about her observations concerning her grandmother's memory lapses.

Plaintiff testified on recall as follows:

[PLAINTIFF'S COUNSEL]: How old is your grandmother?

[PLAINTIFF]: She'll be 80 on Monday.

[PLAINTIFF'S COUNSEL]: Do you live with her now?

[PLAINTIFF]: Yes, I do.

[PLAINTIFF'S COUNSEL]: What have you noticed, if anything, about her memory in the last year or two?

[PLAINTIFF]: It's not very good.

[PLAINTIFF'S COUNSEL]: When you say that, what do you mean?

[PLAINTIFF]: She doesn't remember like five minutes ago sometimes.

[PLAINTIFF'S COUNSEL]: Do you live with her?

[PLAINTIFF]: Yes.

[PLAINTIFF'S COUNSEL]: How long . . . has this been going on?

[PLAINTIFF]: I noticed it happening a few years ago, but ever since my grandfather's death, it's been extremely noticeable.

[PLAINTIFF'S COUNSEL]: When did your grandfather die?

[PLAINTIFF]: He died a little over a year ago.

[PLAINTIFF'S COUNSEL]: And can you describe what kind of memory lapses she has? Give some examples.

[PLAINTIFF]: Everything. We'll be going somewhere and we'll have to go through it at least three or four times where we're going, what time we're going.

You know, like just, you know, what I did for the day, she'll ask me 5,000 times, how was work and what did we do. She'll tell a story like four or five times a night, the same story that happened.

[PLAINTIFF'S COUNSEL]: Does she get confused?

[PLAINTIFF]: Extremely.

[PLAINTIFF'S COUNSEL]: Does she get her facts confused from time to time?

[PLAINTIFF]: Yeah.

Following the jury verdict, defense counsel argued, as part of his new trial motion, that plaintiff's impeachment testimony should have been excluded under N.J.R.E. 607 and N.J.R.E. 405.

The trial court rejected this argument. We affirm.

N.J.R.E. 607 provides, in pertinent part that, "[e]xcept as otherwise provided by Rules 405 and 608, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence relevant to the issue of credibility." Extrinsic evidence is "proof by others" that contradicts or calls into question the witness's version of the facts. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 495 (1999); State v. Silva, 131 N.J. 438, 444 (1993).

Defendant argues that plaintiff's testimony was not proper extrinsic impeachment evidence under N.J.R.E. 607. We disagree. Evidence showing a witness's sensory or mental defects has been deemed to have unquestionable relevance in attacking that witness's credibility and may be introduced either on cross- examination or through extrinsic evidence. State v. Johnson, 216 N.J. Super. 588, 603 (App. Div.), certif. denied, 107 N.J. 647 (1987). While the object of this evidence is usually to show that the witness's ability to perceive the facts was compromised at the time the events at issue occurred, it has also been used to demonstrate difficulties with recollection.

See State v. Henries, 306 N.J. Super. 512, 531 (App. Div. 1997) (holding that evidence of witness's severe psychiatric disorders, which compromised his abilities both to accurately perceive and to reliably recall, was admissible at trial). Defendant's reliance on N.J.R.E. 405 is also misplaced.

Under N.J.R.E. 405, a person's character or specific character trait may be proven by evidence of reputation, evidence in the form of an opinion, or evidence of a conviction of a crime which tends to prove the trait, but not by any other specific instances of conduct. On its face, this rule is wholly inapplicable. Plaintiff was not trying to prove her grandmother's character, but rather the possible malfunctioning of her memory.

III. Damages

Defendant argues that plaintiff failed to produce any competent evidence of compensable damages. Specifically, defendant contends that: (1) all diagnoses were redacted from plaintiff's medical records; (2) Dr. Milchman did not diagnose plaintiff as suffering from an eating disorder and depression; (3) Dr. Milchman should not have been permitted to testify regarding the causes and permanency of eating disorders; and (4) plaintiff did not establish proximate causation. We find these arguments unpersuasive.

Preliminarily, while it is true that all specific diagnoses of anorexia nervosa, bulimia and major depressive disorder were redacted from plaintiff's medical records because plaintiff did not plan on presenting the doctors who had rendered these complex diagnoses, all of plaintiff's complaints, as well as all observations that she suffered from an unspecified eating disorder and general depression, were admitted into evidence.

Additionally, at no point at trial was it ever disputed that plaintiff did, in fact, suffer from an eating disorder and depression. Rather, the focus of the trial was the cause of her condition.

Secondly, we disagree with defendant's argument that Dr. Milchman never offered a separate opinion that plaintiff suffered from an eating disorder and depression. Based upon her review of plaintiff's extensive medical records and her many hours meeting with and testing plaintiff, Dr. Milchman expressly opined that plaintiff had a longstanding history of depression and anxiety, and that plaintiff suffered from anorexia nervosa.

Notably, Dr. Milchman specifically explained that, in her opinion, plaintiff did not have bulimia, as medical professionals had previously concluded, because plaintiff did not binge before purging.

We next address defendant's argument that Dr. Milchman should not have been permitted to testify regarding the causation and permanency of eating disorders, because she was not a gastroenterologist or an internist. The trial judge overruled the objection, noting that eating disorders were psychological conditions. The judge did, however, advise plaintiff's counsel that he might consider addressing in his direct examination that eating disorders fall within the purview of psychologists, and that Dr. Milchman has had some experience in this area.

At the conclusion of Dr. Milchman's testimony, defense counsel moved to strike her testimony regarding plaintiff's eating disorder and the causes thereof, arguing once again that only a gastroenterologist or internist could appropriately testify on this subject. The trial judge again denied the motion. The judge noted, however, that, while he would have preferred if plaintiff's counsel had elicited more detailed confirmation from Dr. Milchman that eating disorders were within her purview as a psychologist, he was satisfied that this was in fact the case. Although, we discern no error in this ruling, on remand, a foundation should be clearly laid as to Dr. Michman's expertise to discuss and opine on plaintiff's alleged eating disorders.

Lastly, defendant contends that, because Dr. Milchman did not testify with sufficient certainty that plaintiff's eating disorder and depression were substantially caused by the sexual abuse, plaintiff failed to establish any entitlement to damages for these conditions. We again disagree. The following testimony elicited from Dr. Milchman clearly reflects that she addressed the issue of proximate cause.

[PLAINTIFF'S COUNSEL]: Do you have an opinion concerning the impact that that sexual abuse had on [plaintiff] assuming the allegations to be true?

[DR. MILCHMAN]: Yes.

[PLAINTIFF'S COUNSEL]: And what is that opinion?

[DR. MILCHMAN]: I think that it had many negative effects on her, some of which overlap with all the other traumas in her life and a few of which are specific only to the alleged sexual abuse history.

I think . . . her depression comes from having had a very, very hard life with multiple serious traumas and losses, and she also has a history of anxiety, same story.

[PLAINTIFF'S COUNSEL]: Could any of those . . . traumatic events have caused the depression?

[DR. MILCHMAN]: I just said all of them could have caused --

[PLAINTIFF'S COUNSEL]: Combined. But let's say there was only one, let's say the murder of her father. Could that itself have caused the depression?

[DR. MILCHMAN]: It could have.

[PLAINTIFF'S COUNSEL]: And what about the anxiety?

[DR. MILCHMAN]: Same answer, it could have.

[PLAINTIFF'S COUNSEL]: But in this case, there's a combination, and you're saying that they all contributed to her depression and anxiety?

[DR. MILCHMAN]: Yes.

[PLAINTIFF'S COUNSEL]: Dr. Milchman, I stopped you at depression and anxiety. Any other?

[DR. MILCHMAN]: I think that her eating disorder could have been caused by her severe maternal deprivation and by her alleged sexual abuse.

In [plaintiff's] case, there certainly was severe maternal deprivation that went on for many years even though her mother from age six on was a constant presence in her life. She was not an adequate caretaker, and so that would have contributed to her eating disorder.

In addition, the alleged sexual abuse would have contributed to her eating disorder [because] . . . [plaintiff felt] filthy and [wanted to] clean [her]self out . . . . So I think both would have contributed.

[PLAINTIFF'S COUNSEL]: . . . Were there any other symptoms that you observed in [plaintiff] that were caused at least in part or in whole entirely by her alleged sexual abuse?

[DR. MILCHMAN]: Yes. I think [plaintiff] showed elevated signs . . . of post traumatic stress and had some symptoms of that . . . . [T]here are many different parts of a post traumatic stress disorder. The part that she seemed to suffer from had to do with intrusive images and trying to avoid them.

That's called a cycle of intrusion and avoidance, and what that means is out-of-control images pop into your mind which are extremely distressful, and so you develop habits to avoid that happening.

Later, Dr. Milchman testified as follows:

[PLAINTIFF'S COUNSEL]: What is your opinion as to . . . whether . . . the sexual abuse contributed to the depression[?]

[DR. MILCHMAN]: I think the alleged sexual abuse would have been a cause for depression and would have contributed to her depression because it would have made her feel worthless as a person in her own right.

[PLAINTIFF'S COUNSEL]: You say "would have," and that's the part -- is it your opinion that the sexual abuse contributed to [plaintiff's] depression?

[DR. MILCHMAN]: Yes.

[PLAINTIFF'S COUNSEL]: Do you have an opinion -- I think you told us you had an opinion that the [sexual] abuse contributed to the eating disorder.

[DR. MILCHMAN]: Yes.

[PLAINTIFF'S COUNSEL]: And that together with a maternal chaos, if I can . . . call it that.

[DR. MILCHMAN]: Yes.

[PLAINTIFF'S COUNSEL]: And you told us your opinion with respect to the . . . intrusive avoidance symptoms.

[DR. MILCHMAN]: Yes.

[PLAINTIFF'S COUNSEL]: Do you have an opinion as to whether the sexual abuse asserted by [plaintiff] caused any other symptoms that you observed?

[DR. MILCHMAN]: Yes.

[PLAINTIFF'S COUNSEL]: And what other symptoms?

[DR. MILCHMAN]: She became -- I think it caused symptoms of sexual dysfunction . . . .

[PLAINTIFF'S COUNSEL]: Do you have an opinion as to whether the sexual abuse caused any other symptoms?

[DR. MILCHMAN]: Yes.

[PLAINTIFF'S COUNSEL]: And what are they?

[DR. MILCHMAN]: I think that it caused some portion of her academic difficulties . . . . [I]n addition to contributing to a damaged self-image, I think it also damaged her sense of trust in other people. She's suspicious of other people and very guarded with them.

Dr. Milchman thus opined, based on "reasonable psychological certainty," that the sexual abuse was a proximate cause of plaintiff's psychological damages. Dr. Milchman's acknowledgment, on cross-examination, that it was entirely possible that the other traumas plaintiff had experienced during her life, aside from the sexual abuse, had, jointly or singly, resulted in her depression, and that plaintiff's eating disorder could have been caused by her parental deprivation alone, does not undermine the legal propriety of the doctor's opinion as to proximate cause.

In order to impose tort liability upon a defendant, a plaintiff must prove the defendant's wrongful conduct, injury and proximate cause. Thorn v. Travel Care, Inc., 296 N.J. Super. 341, 346 (App. Div. 1997). Where harm is produced by concurrent acts, each act is considered a proximate cause if it was a substantial factor contributing to the loss. Conklin v. Hannoch Weisman, 145 N.J. 395, 419 (1996). The determination of whether a particular act was a substantial factor contributing to the loss is left to the jury. Grassis v. Johns-Manville Corp., 248 N.J. Super. 446, 457 n.8 (App. Div. 1991). Although the plaintiff bears the burden of proving causation, he or she is not obliged to establish it by direct, indisputable evidence, but may rely upon legitimate inference so long as the proofs presented will justify a reasonable and logical inference as opposed to mere speculation. Thorn, supra, 296 N.J. Super. at 347.

Given the fact that plaintiff had experienced numerous traumas in her short life, and also that her injuries were to her mind/psyche and not to her physical body, Dr. Milchman's opinion as to causation was entirely plausible and legally valid. It is up to the jury to determine whether it prevails against the other equally plausible causes of plaintiff's psychological injuries.

IV. Conclusion

The trial court's ruling admitting the poetry and diary evidence is reversed. Defendant's argument that the jury verdict was against the weight of the evidence is mooted by our decision in this regard. The balance of the court's rulings are affirmed. The matter is remanded for a new trial consistent with this opinion.

Affirmed in part; reversed in part; and remanded.

20080409

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