On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1586-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Submitted January 20, 2009
Before Judges Carchman, R. B. Coleman and Simonelli.
In this disability discrimination case, plaintiff Cathy Melitski appeals from the order of March 17, 2008, dismissing her complaint with prejudice after a jury's unanimous no-cause verdict in favor of defendant State of New Jersey, Division of Law. On appeal, plaintiff contends that the trial judge misapplied N.J.R.E. 808 by redacting doctors' notes she sought to admit into evidence; tainted the jury by expressing her opinion that defendant did not fail to accommodate her disability; denied her a fair trial by correcting counsel's description of her disability in his opening statement; denied her the right to ask leading questions of a hostile witness; improperly refused to admit the hostile witness's authenticated notes; and improperly dismissed her punitive damages claim. We reject these contentions and affirm.
On August 3, 2004, plaintiff, a Deputy Attorney General with the Department of Law and Public Safety, Division of Law, was struck by a car while walking to work. She sustained injuries to her neck, requiring an anterior cervical diskectomy and fusion and resulting in limited neck mobility and pain exacerbated by prolonged sitting. As a result of her injuries, plaintiff took an authorized leave of absence beginning on or about October 15, 2004.
Plaintiff returned to work on November 28, 2005. On December 22, 2005, she submitted an American with Disabilities Act (ADA)*fn1 request for accommodation. She requested a part-time work schedule with the hours 10:00 a.m. to 1:30 p.m. to avoid sitting in traffic. She also requested a Bodybilt ergonomic chair recommended by her doctors. She later requested a stand up desk.
Defendant adjusted plaintiff's work schedule and provided a stand-up desk and two non-Bodybilt ergonomic chairs. However, plaintiff insisted that the Bodybilt chair was the only appropriate accommodation for her disability. She also claimed that defendant violated her part-time work schedule by making her work longer hours. As a result, on February 21, 2006, plaintiff filed a complaint, alleging a failure to accommodate her disability in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.
Defendant provided the Bodybilt chair on or about June 26, 2006. Plaintiff claimed that the delay in providing this accommodation was unreasonable and constituted a violation of the LAD. Defendant countered that the proffered accommodations, the two ergonomic chairs, were reasonable and that it acted in good faith to resolve plaintiff's ADA accommodation request.
At trial, plaintiff had to establish, among other things, that the Bodybilt chair was the only accommodation for her disability and, thus, defendant had to provide it. To accomplish this goal, plaintiff sought to admit her doctors' notes, which contained recommendations that the Bodybuilt chair would accommodate her disability. Defendant objected on hearsay grounds.
The trial judge concluded that "[t]he only purpose for which the notes can be considered in the absence of the testimony of the author is to establish that the plaintiff did notify the defendants of her request for a reasonable accommodation in the form of . . . an ergonomic chair." The judge barred use of the notes to establish that the Bodybilt chair was the only chair that would accommodate plaintiff's disability. The judge admitted the documents with redactions of the hearsay references to the doctors' recommendations.
Plaintiff argues that the recommendations were not hearsay. Alternatively, she argues that the recommendations are trustworthy under N.J.R.E. 808 because they were written before the litigation commenced. She also relies on Bonitsis v. N.J. Inst. of Tech., 363 N.J. Super. 505 (App. Div. 2003), certif. denied, 180 N.J. 456 (2004).
"As a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion." Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991); see also Purdy v. Nationwide Mutual Insurance Co., 184 N.J. Super. 123, 130 (App. Div. 1982). We grant substantial deference to the trial judge's discretion on evidentiary rulings. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Applying these standards, we continue our analysis.
"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Hearsay is inadmissible unless an exception applies. N.J.R.E. 802. Here, plaintiff intended to use the doctors' recommendations to prove that the Bodybilt chair was the only chair that would accommodate her disability. The doctors' recommendations, therefore, are statements offered to prove the truth of the matter asserted. Accordingly, they constitute inadmissible hearsay, which the trial judge properly redacted.
N.J.R.E. 808 does not change this result. "Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion . . . tend to establish its trustworthiness." N.J.R.E. 808 (emphasis added). Because the doctors' recommendations are not admissible hearsay statements, N.J.R.E. 808 does not apply.
Further, plaintiff misinterprets Bonitsis, supra. There, the plaintiff alleged that the defendants failed to accommodate his disability. 363 N.J. Super. at 511. The defendants claimed that the plaintiff never submitted documentation requesting an accommodation. Id. at 525. At trial, the plaintiff offered his treating physician's letters to prove that he had requested an accommodation. Id. at 511, 524. We permitted such use, finding that the plaintiff did not offer the letters to show the nature and seriousness of his medical disability, but rather, to show that he had requested an accommodation and documented his request. Id. at 525.
There was no dispute here that plaintiff requested an accommodation and documented her request. The dispute concerned whether only the Bodybilt chair would accommodate her disability and whether defendant's failure to timely provide it constituted a failure to accommodate. The doctors' recommendations directly addressed these central issues, and thus, constituted ...