December 30, 2009
JOHN GUSLAVAGE, PLAINTIFF-RESPONDENT/CROSS-APPELLANT,
THE CITY OF ELIZABETH, DEFENDANT-APPELLANT/CROSS-RESPONDENT, AND THE ELIZABETH POLICE DEPARTMENT, CHIEF GENE MIRABELLA, DEPUTY CHIEF MARY RABADEAU, DEPUTY CHIEF JOHN SIMON, ACTING POLICE DIRECTOR MICHAEL J. ORAK, LT. PATRICK SHANNON, CHIEF PATRICK MALONEY, CAPTAIN ROBERT HOUSTON, ALL INDIVIDUALLY AND IN THEIR CAPACITIES AS EMPLOYEES OF THE CITY OF ELIZABETH, DEFENDANTS.
JOHN GUSLAVAGE, PLAINTIFF-RESPONDENT/CROSS-APPELLANT,
THE CITY OF ELIZABETH, DEFENDANT-APPELLANT/CROSS-RESPONDENT, AND THE ELIZABETH POLICE DEPARTMENT, POLICE DIRECTOR JAMES COSGROVE, CHIEF JOHN SIMON AND CAPTAIN MARK KURDYLA, ALL INDIVIDUALLY AND IN THEIR CAPACITIES AS EMPLOYEES OF THE CITY OF ELIZABETH, DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket Nos. L-857-02 and L-1870-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 23, 2009
Before Judges Carchman, R. B. Coleman and Sabatino.
Defendant, City of Elizabeth, appeals from a final judgment in favor of plaintiff John Guslavage, based on a jury verdict that awarded him $600,000 on his claim that his employer, the Elizabeth Police Department (EPD), retaliated against him. On appeal, defendant contends that the trial judge erred in denying its motion for judgment notwithstanding the verdict and in admitting certain evidence. In a cross-appeal, plaintiff argues that the trial judge improperly limited the scope of his retaliation action and wrongly precluded his physician from testifying regarding the permanency of his condition. He also challenges the fee award. We affirm on both the appeal and cross-appeal.
The procedural history of this case, which led to the jury trial over a six-week period in May and June 2006, is extensive. For purposes of this appeal, it will suffice to note that on May 15, 1995, plaintiff, a police officer, filed a complaint pursuant to the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, in the Superior Court, Law Division, Union County, against defendants City of Elizabeth, the EPD, Chief Gene Mirabella, Deputy Chief Mary Rabadeau, Chief John Simon, Acting Police Director Michael J. Orak, and Lieutenant Patrick Shannon, alleging that plaintiff had suffered retaliation for engaging in whistle-blowing activities in 1994. That complaint was stayed on May 14, 1996, pending completion of related administrative hearings. On April 17, 2001, plaintiff filed a second CEPA complaint against defendants - City of Elizabeth, the EPD, Police Director James Cosgrove, Chief Simon and Captain Mark Kurdyla - wherein he made additional allegations of retaliation following other alleged whistle-blowing activities in 1999. By order dated and filed May 16, 2001, plaintiff's first complaint was dismissed without prejudice.
On February 19, 2002, plaintiff filed a third CEPA complaint against defendants City of Elizabeth, the EPD, Gene Mirabella, Mary Rabadeau, John Simon, Michael J. Orak, Patrick Shannon, Patrick Maloney, and Robert Houston. This complaint and plaintiff's second complaint were thereafter consolidated with the consent of all parties.
On June 27, 2003, summary judgment was granted dismissing the consolidated complaints with prejudice as to all defendants. Plaintiff appealed and in an unpublished written opinion, dated July 1, 2004, we reversed in part and remanded the case on the issue of whether transfers of the plaintiff in 1994 and 2000 constituted retaliatory acts under CEPA.
Thereafter, on February 2, 2006, plaintiff voluntarily dismissed with prejudice his claim against defendant Orak, and on March 3, 2006, summary judgment was granted, dismissing with prejudice plaintiff's claim against defendant Maloney. On April 18, 2006, with the consent of all parties, the court dismissed with prejudice all claims against the remaining individual defendants, and also dismissed with prejudice plaintiff's complaint against the EPD since it was part of defendant City of Elizabeth.
The case proceeded to trial on numerous dates in May and June 2006, and on June 16, 2006, the jury returned a verdict finding on the jury verdict sheet that plaintiff had not "proven by a preponderance of the credible evidence that in 1994 he [had] disclosed to a supervisor or a public body on activity, policy or practice of the defendant City of Elizabeth that [he] reasonably believed to be in violation of a law or rule or regulation promulgated pursuant to law[.]" The jury answered "yes" to that question as it related to 1999 and found in plaintiff's favor with respect to his allegation that a transfer in that time frame was in retaliation for disclosures he had made. The jury awarded plaintiff compensatory damages of $600,000, but declined to award punitive damages. The trial judge considered post-trial motions and entered an order dated December 20, 2006, that awarded plaintiff an additional $261,909.81 in counsel fees and costs from April 17, 2001 to the date of that order. Defendant's motions for judgment notwithstanding the verdict, for a new trial and for remittitur of the jury's verdict were denied.
Defendant appealed, and plaintiff cross-appealed.
The crux of plaintiff's claims is that the EPD retaliated against him by transferring him from a supervisory position in the Narcotics Division to other non-supervisory positions which subjected him to humiliation and obloquy. He also claims defendant instituted disciplinary charges against plaintiff in retaliation for claims of improprieties within the department that he was pursuing. The disputes center around events that occurred as early as 1994.
a. 1994 Events
In 1994, plaintiff was a sergeant in the Narcotics Division of the EPD, serving under Lieutenant Patrick Shannon, Deputy Chief John Simon, and Chief Gene Mirabella. Plaintiff joined the EPD in 1969, and was instrumental in founding EPD's Narcotics Division. At that juncture, he had a virtually unblemished disciplinary record, and had been repeatedly commended for outstanding work in numerous narcotics investigations for both the EPD and federal drug agencies.
On January 5, 1994, plaintiff met with Nicholas Mavronas, a New Jersey Transit bus driver who had been arrested on drug charges by EPD Officers Phil O'Donnell and John Cockinos outside of Cervantes Lounge (Cervantes). Mavronas agreed to act as a confidential informant with respect to an investigation of Cervantes and Omar's Place (Omar's). He told plaintiff that he had personally purchased cocaine from Ramon Barrios, the owner of Cervantes. He further related that he believed Barrios's daughter, Yolanda, who worked as an EPD dispatcher, was leaking information to her father. Notably, Cockinos and O'Donnell had previously complained to plaintiff regarding Yolanda.
Mavronas informed plaintiff that, roughly ten days before his arrest, one of the barmaids in Omar's had pointed out three narcotics officers who were having drinks and stated that they were good friends of Jose Orlando Hernandez, also known as Omar, the owner of Omar's. According to Mavronas, these officers were present during his subsequent cocaine buy, and they were in the bar while the drug activity was going on. Based upon Mavronas's descriptions, plaintiff and Cockinos suspected two of the officers as Detectives Rudy Vines and Gonzalo Quesada, but they were uncertain as to the identity of the third officer.
Plaintiff prepared case initiation reports regarding the Cervantes/Omar investigation wherein he included a reference to narcotics officers being present in Omar's. According to plaintiff, his supervisor, Lieutenant Shannon, directed him to delete this reference. Shannon denied this. In any event, in place of "narcotics" officers, plaintiff substituted EPD officers and forwarded the reports to Deputy Chief Simon. After Simon approved the reports, Shannon directed plaintiff not to forward the report pertaining to Omar's to the Union County Prosecutor's Office (UCPO).
Later, plaintiff learned that he was not being assigned any additional manpower other than his fellow sergeant in the Narcotics Division, Glen Hennings, to assist in the Omar's portion of the investigation. Plaintiff found these occurrences suspicious.*fn1 In addition, after Hennings assisted plaintiff and Mavronas in making a controlled buy at Cervantes, Mavronas told plaintiff that Hennings was the third of the three officers at Omar's. Plaintiff indicated he had already become suspicious of Hennings after Hennings secretly scheduled a raid on Omar's that could have disrupted the investigation. Plaintiff shared this information with Simon, who plaintiff believed became upset and suggested that they have a meeting the next day with Shannon and Mirabella to discuss the matter. However, at that meeting, Shannon stopped plaintiff from raising the matter, and after the meeting, Shannon accused plaintiff of knowing the identity of the third officer at Omar's all along.*fn2 The next day, Shannon ordered plaintiff to stop the investigation at Omar's and to focus on Cervantes.
Shannon justified this action by claiming that this was never intended to be a long investigation, that they had only limited resources, and that there had been no undercover buys at Omar's through March. However, plaintiff suspected a cover-up. Plaintiff's suspicions in this regard were bolstered, he believed, when Detective Anne Arocchia of the UCPO told him that a prior investigation at Omar's had been aborted because Vines and Quesada were friends with the owners. Plaintiff testified he complained to Mirabella regarding the termination of the investigation, but to no avail.
Mavronas also told plaintiff that he had seen Barrios's attorney snorting cocaine in Cervantes. Plaintiff knew the identity of that attorney and reported this information to Shannon. Although Shannon was reluctant to take the matter further, he eventually arranged a meeting with Simon. At this meeting, Simon advised plaintiff to let the matter go, commenting that Mavronas was unreliable, and that his information was uncorroborated. According to plaintiff, Simon directed him not to report this information to the UCPO, which seemed unusual to plaintiff. Shannon and Simon denied that Simon told plaintiff not to report this to the UCPO.
In late May 1994, the Drug Enforcement Agency (DEA) made inquiries regarding the progress of the investigation, and a meeting was subsequently held to discuss the future of the investigation. It was decided that, as there had been no success in obtaining incriminating information against Omar and Barrios, the undercover portion of the investigation would be discontinued. Plaintiff strenuously objected to this and proposed taking the matter to the United States Attorney's Office (USAO). According to Shannon, he specifically told plaintiff not to do this. Plaintiff, however, recalled that all Shannon said was "that's enough."
One hour after the meeting, plaintiff contacted Assistant U.S. Attorney Kevin McNulty and scheduled a meeting for the following day. Plaintiff claimed that, before making this call, he revealed his intentions to Mirabella, who did not object. During the subsequent meeting, McNulty agreed to take the case and stated that he would be discussing the matter with the Union County Prosecutor Drew Ruotolo. As McNulty recalled, plaintiff did not make any concrete allegations of police corruption; rather, he simply discussed his suspicions. Ultimately, the USAO assigned Assistant U.S. Attorney Donna Krappa to the case.
Krappa considered this to be a drug investigation. She did not recall plaintiff naming "corrupt cops." She also noted that she was present during a conference call between Ruotolo, Mirabella and McNulty and she understood that plaintiff had permission to be involved in the federal drug investigation. To that end, plaintiff testified he spoke in August 1994 to Mirabella who advised him that he had received a call from Michael Zidonek, an assistant prosecutor in the UCPO, and that, per Ruotolo, plaintiff was being assigned to the USAO to assist in the Cervantes investigation. Zidonek confirmed having made this call.
Mirabella had no memory of the call. Rather, on August 8, 1994, Mirabella temporarily transferred plaintiff to the Union-Essex Auto Task Force. According to plaintiff, this occurred even though Mirabella had previously promised him that he would not be transferred from the Narcotics Division. However, according to plaintiff, Mirabella asked him to go to the Task Force for a month as a favor. Mirabella claimed he made the decision partly because plaintiff was detail-oriented and a good administrator, and partly because he had learned from Hennings, Shannon, and Simon that plaintiff was not getting along very well with the other officers in the Narcotics Division. He admitted, though, that plaintiff had more experience in narcotics than anyone else in the division.
Plaintiff retained the rank of sergeant, but he contends he came to realize that his new assignment did not involve any administrative or supervisory duties. During his tenure with the unit, which lasted through June 28, 1995, he effectively served as a patrolman and took orders from an actual patrolman who had been given supervisory authority because of his lengthy tenure with the Task Force. Plaintiff charged that Mirabella had wanted to punish him, noting that he was never reassigned to the Narcotics Division, but was instead placed in the Patrol Division, where he worked as a patrol supervisor.
According to Shannon, he learned for the first time that plaintiff had gone to the USAO on September 2, 1994. Shannon insisted that he never heard that Mirabella had authorized plaintiff to work with the UCPO and the USAO on a continuation of the Cervantes investigation. Zidonek reported, however, that he spoke to Shannon on September 9, 1994, regarding his conversation with Mirabella.
In any event, plaintiff's superiors subsequently held a meeting to consider imposing disciplinary charges against plaintiff. Shannon believed that plaintiff had disobeyed his direct orders (1) not to go to the USAO or share investigation files, (2) to complete the reports needed to bring charges against the individuals arrested during the 1994 investigation, and (3) to turn the reports in to Shannon. Plaintiff insisted that he had completed his reports and that Shannon, in fact, signed off on them. He further maintained that he had told Shannon that he would hand in the reports in Mirabella's office, but Shannon never arranged this meeting. Plaintiff further noted that the reports were not even necessary any longer because the UCPO had relinquished the investigation to the USAO.
Disciplinary charges were drafted by Shannon and approved by Simon and Mirabella. Plaintiff was served with a notice of disciplinary action on October 14, 1994. Largely because of the pending of these charges, the USAO's investigation into Cervantes was abandoned.
b. 1997 Events
In early 1997, plaintiff met with Mavronas who was scheduled to testify at plaintiff's disciplinary hearing on the 1994 charges, which had finally begun in 1996. Mavronas was scared and told plaintiff he did not want to testify. During their meeting, plaintiff asked Mavronas to identify the attorney he saw at Cervantes from a photo array. Mavronas selected photo number three and signed it on the back.
Thereafter, according to Shannon, Mavronas called him and advised that plaintiff had instructed him to lie when he took the stand at plaintiff's disciplinary hearing. Based upon Mavronas's allegations that plaintiff had instructed him to testify falsely, a preliminary notice of disciplinary action was served upon plaintiff that contained six specifications. These specifications were heard at the ongoing hearing regarding the 1994 charges, at the conclusion of which, the hearing officer issued a written decision wherein he found plaintiff not guilty on all of the 1994 charges, and not guilty on all but charge six of the 1997 charges. The hearing officer recommended that plaintiff be suspended for five days.
c. 1999 Events
In 1998, EPD patrol officers, including plaintiff, who was by then a supervisor, were under a new mandate to rid the streets of drug dealers. Plaintiff interacted with community leaders and also spoke to street-level contacts. In the course of such interactions, plaintiff received numerous reports from street contacts Jamal Thomas, Joe Green, Anthony Williams, and Tasha Jackson, as well as a local tavern owner, John Coutis, that Rudy Vines, a detective, was allegedly using illegal drugs and taking drugs and money from local dealers. Plaintiff secretly recorded some of these conversations with three street contacts. Plaintiff also spoke with EPD Officer Tracy Finch who confirmed that he had heard similar reports.
After some deliberation, plaintiff reported the information he had obtained, not to the EPD's Internal Affairs Unit, as required, but to Captain Edward Johnson of the UCPO. Based upon the EPD's treatment of him in connection with the 1994 and 1997 charges, and the fact that his hearing was still ongoing, plaintiff did not believe that any allegations made by him against Vines would be handled properly by the EPD's Internal Affairs Unit. He was concerned that the matter would somehow be turned against him. He did not trust Simon and believed that Simon had a conflict of interest since he was supporting Vines in connection with plaintiff's disciplinary hearing. Plaintiff's informants had also expressed an unwillingness to speak with the EPD. As such, plaintiff specifically asked Johnson not to contact the EPD.
Thereafter, when plaintiff was unable to produce his informants to give formal statements to Johnson, Johnson contacted the EPD's Internal Affairs Unit for assistance. The resulting joint investigation was likewise unsuccessful since plaintiff's informants either refused to cooperate or denied their earlier statements to him. Johnson reviewed the secret tape recordings that plaintiff had made, but believed those recordings were too vague to be of use to the investigation.
Ultimately, the charges against Vines were deemed unsubstantiated.
On August 9, 1999, the EPD brought new disciplinary charges against plaintiff alleging, among other things, that he had violated an EPD rule mandating that information about criminal activity by a police officer be reported internally. The Police Director at the time, James Cosgrove, presided over a hearing on plaintiff's charges. In a decision rendered April 25, 2000, Cosgrove sustained the charges, but recommended that plaintiff be suspended for five days, rather than removed from the force as originally sought in the proceeding. Cosgrove also ordered plaintiff to undergo a psychiatric examination based upon his belief that plaintiff had testified during the hearing that he trusted only ten or fifteen of his fellow employees at the EPD.
Dr. Robert Kanen examined plaintiff on May 17, 2000, and found him fit for duty, although suffering from work-related stress and depression which was likely to "somewhat reduce" his job performance. Kanen did not find plaintiff to be unusually suspicious or paranoid, but noted that plaintiff had some "realistic fears that emanate from his going outside the department with complaints concerning police activities within the department." The doctor also felt that certain aspects of plaintiff's personality, i.e., his tendency to "misperceive events and to form mistaken impressions of people" left him at risk for "continued performance difficulty."
d. 2000 transfer
Based upon Kanen's report, and his own personal opinion as to plaintiff's paranoia, Simon, who by then had succeeded Mirabella as Chief of Police, ordered plaintiff's transfer from Patrol to the Services Division. Simon believed that plaintiff needed a job with closer supervision and that this job, which was a lateral position involving no loss in pay, was the "perfect fit." Simon insisted that he had no intention of punishing plaintiff, noting that he granted plaintiff special permission to continue working his usual four-day-per-week schedule, rather than the five-day schedule that was the norm in the Services Division. However, he admitted that he was of the opinion that plaintiff had conducted an unauthorized "witch-hunt" of Vines.
Plaintiff initially learned of the transfer from two other officers who suggested that he "get plenty of video tapes and reading material because [he] was going to the 'basement' in the Services Division, [the] property room." According to plaintiff, the EPD's unfinished, windowless basement-level Property Room, where police records and evidential materials, including drugs, weapons and money, were stored, was commonly referred to as the "dungeon." Plaintiff knew that, in this new assignment, he would only be supervising a couple of civilian clerks, rather than six to ten fellow police officers, that he would have limited contact with the rest of the department and none with the public, and that the work he would be performing would not be commensurate with his experience.
Plaintiff insisted that his immediate supervisor in his new position, Captain Matthew Zalinsky, specifically informed him that his office was going to be located in the basement, although all of the other officers assigned to the Services Division, including Zalinsky and another sergeant, as well as nearly all of the civilian clerks, worked out of the first floor. The officers who had previously held plaintiff's new position had had a choice as to the level from which they wished to work. Both Simon and Zalinsky denied that they gave plaintiff no choice as to where his office would be situated.
After viewing his new work space, plaintiff was in a "state of shock." He declared he "just couldn't believe it was happening to me." Plaintiff arranged a meeting with Simon through his union representative. During this meeting, Simon told plaintiff that he had decided to transfer him to the Services Department "for the betterment and efficiency of the Police Department." Plaintiff interpreted this to mean that he was considered a nuisance who needed to be gotten rid of and isolated.
According to plaintiff, when he first reported for duty in the Services Department, Zalinsky, who was close friends with Simon, told him that Simon had placed him under Zalinsky so that Zalinsky could watch him and monitor what he was doing. Simon confirmed that he intended for Zalinsky to keep an eye on plaintiff. Plaintiff recalled that, thereafter, Zalinsky attempted to thwart all the improvements he suggested for the Property Room. They argued over how the room should be run and some of their arguments almost became physical. Zalinsky conceded that he had numerous run-ins with plaintiff, but insisted that he implemented many of plaintiff's proposed changes.
Plaintiff recalled that, on one occasion Zalinsky wrongly accused him of failing to timely deliver evidence. Zalinsky chastised him for this allegedly unprecedented occurrence and told him that he was "no good" for the department. Zalinsky further stated that plaintiff was "a troublemaker" who "was on some odyssey because of [his] lawsuit." He threatened to put a camera in plaintiff's office and watch "every move" he made. According to plaintiff, Zalinsky repeated these remarks on other occasions as well.
On one occasion, plaintiff accepted a piece of evidence to be used at a trial and left it to be logged in by one of his clerks. A few months later he was advised that the evidence was missing, and Zalinsky accused him of losing it. Plaintiff demonstrated through computer records that the evidence had last been handled not by him, but by the clerk who logged it in. Although both plaintiff and the clerk advised Zalinsky of this fact, he was indifferent.
On another occasion, Zalinsky interrupted a staff meeting plaintiff was holding in the basement and the two began arguing. Zalinsky accused plaintiff of failing to assist an officer who wanted handguns for the firing range. The argument escalated and, according to plaintiff, Zalinsky told him to take his best shot and then shoved plaintiff. Zalinsky positioned himself in front of a security camera, but when plaintiff did not respond to the provocation, Zalinsky eventually told plaintiff that he would be sorry and walked away. Zalinsky admitted that he had a fight with plaintiff on this occasion, but denied deliberately provoking him.
After Zalinsky left the Property Room, plaintiff felt that he could not take it anymore and that he had to leave. He had an emergency session with his psychiatrist, Dr. Martin Meyer, who advised him to stay out of work on sick leave. Plaintiff did not return to work until April 2004. Upon his return to the Property Room, he discovered that no one had been assigned to supervise the area in his absence, that the procedures he had put in place had been discontinued, and that all of his computer files containing financial and inventory records had been erased, and his computer was reassigned to someone else.
Plaintiff testified that his efforts to cope with what was happening to him in the department from 1994 onward caused him to have headaches and trouble sleeping. After the 1994 disciplinary charges were brought against him, many of his fellow officers avoided him and he lost a lot of friends. The "shunning" grew worse as the years passed, with people only talking to him if they had to. His headaches gradually increased in frequency and intensity and he developed blurred vision. He also passed out on one occasion while on the job.
In 2001, plaintiff consulted both a general practitioner and a neurologist for his stress-related problems. The neurologist sent him to a psychiatrist, Dr. Meyer. He told Dr. Meyer that he felt isolated, inept and apprehensive. Dr. Meyer prescribed anti-depressants which helped plaintiff cope, although he remained in counseling.
Plaintiff also related that his problems on the job greatly impacted his relationship with his fiancée. He claimed that, due to his general lack of enjoyment of life, they had stopped vacationing and socializing, and that they had not had sex in years. Plaintiff also claimed that he stopped renovating their house and that he no longer engaged in his former hobbies of hunting and fishing. He stated that, although he got his pilot's license in 1993, he grounded himself due to his inability to concentrate.
Dr. Meyer testified that he began treating plaintiff in 2002 and diagnosed him with a "major depressive disorder severe" with a guarded prognosis. He recalled that plaintiff had complaints of headaches, nausea, blurred vision, anxiety, sleeping problems and frustration. He also complained of a persistent depressed mood, loss of pleasure and feelings of uselessness. Plaintiff told him that he felt he had been assigned to the basement as punishment, and that he felt demeaned and devalued.
Dr. Meyer was of the opinion that plaintiff's depression stemmed from his work problems. He noted that plaintiff had gone from being a highly functional and commended officer to someone who was constantly monitored and disciplined and who lived under a continuous administrative cloud. He stated that being a police officer was a huge part of plaintiff's identity and that he had suffered a great loss in self-esteem. Dr. Meyer maintained that plaintiff needed his medication to avoid another relapse.
Defendant contends that the lower court erred in admitting the various out-of-court statements made to plaintiff regarding Vines's drug use. For example, plaintiff testified, over an overruled defense objection on hearsay and undue prejudice grounds, that he first heard allegations of drug use by Vines in 1998 from an individual named Jamal Thomas. Thomas also advised plaintiff that Vines was not vigorously pursuing drug raids in the area out of fear that his drug use would be discovered. However, at that time, plaintiff deemed the information too vague to report and initially let the matter drop.
Some months later, though, plaintiff learned from tavern owner Coutis that Vines had responded to his bar after Coutis had reported a suspected drug dealer to the EPD. According to Coutis, Vines loudly announced upon arrival that he understood Coutis "had a drug problem," thereby revealing that Coutis had gone to the police and jeopardizing Coutis's safety since the drug dealer was in the bar at the time. Vines was then embraced by the drug dealer, and the two had drinks together. Coutis advised plaintiff that he reported this incident to the UCPO and to Cosgrove.
Following Coutis's disclosures, plaintiff heard from another individual, Joe Green, that Vines and another EPD officer, Elliot Hale, were using drugs. Anthony Williams also reported to plaintiff that he had witnessed drug purchases made with no action taken by Vines. Plaintiff subsequently spoke with Tasha Jackson, who had been linked to Vines by both Green and Williams. She told plaintiff that she had witnessed Vines purchase heroin. Plaintiff also spoke to Officer Tracy Finch, one of his supervisees, about Vines. Finch told plaintiff that he had also heard from various street sources about drug use by Vines. Based upon these statements, plaintiff contacted the UCPO and gave a formal statement to Johnson regarding alleged illegal activities by Vines.
Under CEPA, an employer may not take retaliatory action against an employee because that employee has disclosed "to a supervisor or to a public body an activity, policy or practice of the employer... that the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law[.]" N.J.S.A. 34:19-3(a) (emphasis added). A CEPA plaintiff "must show that his belief that illegal conduct was occurring had an objectively reasonable basis in fact - in other words that, given the circumstantial evidence, a reasonable lay person would conclude that illegal activity was going on." Regan v. City of New Brunswick, 305 N.J. Super. 342, 356 (App. Div. 1997).
Out-of-court statements offered to prove the truth of the matter asserted are hearsay and are generally inadmissible at trial. State v. White, 158 N.J. 230, 238 (1999). However, "[w]hen a statement is offered to prove the probable state of mind it induced in the listener, such as to show information which the listener had which bore on the reasonableness or good faith of the listener's subsequent conduct, that evidence is not ordinarily excluded as hearsay." Spragg v. Shore Care, 293 N.J. Super. 33, 57 (App. Div. 1996). Such testimony is, however, usually admitted with a limiting instruction. Ibid.
Defendant contends that, because the subject out-of-court statements comprised the sole proof of plaintiff's objectively reasonable belief that Vines had engaged in illegal activities, they were necessarily admitted for the proof of the matter asserted and, as such, constituted inadmissible hearsay. In defendant's view, an objectively reasonable belief that counsel for plaintiff went beyond utilizing the out-of-court statements to prove mere state of mind and were introduced and used as proof of the truth of the matter asserted. We disagree.
While plaintiff was obligated to show that he had an "objectively reasonable belief" that Vines had engaged in an illegal activity, he was not required to present direct proof or first-hand knowledge on this point. Under CEPA, plaintiff was not obligated to show that Vines had actually violated the law. Dzwonar v. McDevitt, 177 N.J. 451, 462, 464 (2003); Klein v. Univ. of Med. & Dentistry of N.J., 377 N.J. Super. 28, 39 (App. Div.), certif. denied, 185 N.J. 39 (2005). Circumstantial evidence that supports an objectively reasonable belief in wrongdoing can be sufficient. Regan, supra, 305 N.J. Super. at 356.
Here, it did not matter whether the allegations contained in the statements gathered by plaintiff were true or not. The question was whether those statements, viewed cumulatively and taking into account by whom they were made, were sufficient to create an objectively reasonable belief on the part of a police officer such as plaintiff that Vines was engaged in illegal conduct. The jury could have also considered the fact that neither the UCPO nor the EPD rejected plaintiff's report, but deemed it sufficient for the launching of an investigation into Vines.
Defendant contends that the statements were "clearly hearsay" because "the jury had to make a determination as to the reliability of these statements in order to determine if [plaintiff's] belief was objectively reasonable," and that such determination could not be made unless the statements were considered as proof of the matter asserted. In support of this contention, defendant relies upon Spragg, supra, 293 N.J. Super. at 55, a case involving alleged sexual discrimination wherein the defendant alleged that the lower court had erred in excluding certain affidavits signed by female patients who refused to be seen by male home nursing aides. The defendant in Spragg had sought the admission of these affidavits (which were, notably, gathered after the inception of the plaintiff's lawsuit) to prove that its longstanding policy of assigning only female aides to female patients was not discriminatory but was a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of its business. Id. at 55-56. However, in order to prove its BFOQ defense, the defendant in Spragg had to show that there was a "factual basis" for its conclusion that its assignment policy was reasonably necessary, i.e., that female patients really did not want to be cared for by male aides. Id. at 49, 51-52.
The Spragg panel found that, in light of the defendant's burden of proof, it would be necessary for the jury to consider whether the affidavits were truthful and reliable. Id. at 57-58. Because the affidavits were thus actually being offered to prove the truth of the matters contained therein, the Spragg court affirmed the lower court's ruling that the affidavits constituted inadmissible hearsay. Id. at 58. Here, unlike in Spragg, plaintiff did not have to demonstrate Vines's illegal activities as a matter of fact. As such, defendant's reliance upon Spragg is misplaced.
We also note that in Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 375-76 (2007), a retaliatory discharge case brought under the New Jersey Law Against Discrimination, our Supreme Court deemed admissible an investigative report detailing alleged wrongdoing on the part of the plaintiff for purposes of assessing the defendant-employer's motive in firing him. The Carmona Court did not find that an assessment of the truth of the statements contained in the report was necessary to determine the employer's state of mind or motivation. Ibid. Similarly, we reject this aspect of defendant's argument.
In addition, we are satisfied the judge administered a proper limiting instruction in connection with these statements and, contrary to defendant's representations, plaintiff's counsel did not argue to the jury that these statements were true. Under all the circumstances, we cannot conclude that the trial court abused its discretion in admitting the various outof-court statements made to plaintiff regarding Vines's alleged drug use. Brenman v. Demello, 191 N.J. 18, 31 (2007).
Defendant next argues that the trial court erred in denying its motions for judgment and for judgment notwithstanding the verdict since plaintiff did not satisfy his burden of proof with respect to the reporting requirement contained in N.J.S.A. 34:19-4. When reviewing a ruling by a trial judge on a motion for a directed verdict pursuant to Rule 4:40-1, or for judgment notwithstanding the verdict pursuant to Rule 4:40-2, an appellate court must "accept as true all the evidence which supports the position of the party defending against the motion and [must] accord him the benefit of all [legitimate] inferences which can" be deduced therefrom, in determining whether a cause of action has been made out. Dolson v. Anastasia, 55 N.J. 2, 5 (1969); accord Burg v. State, 147 N.J. Super. 316, 318-20 (App. Div.), certif. denied, 75 N.J. 11 (1977). Like the trial court, an appellate court "is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion." Dolson, supra, 55 N.J. at 5-6.
Under CEPA, an employer may not take retaliatory action against an employee because that employee has disclosed "to a supervisor or to a public body an activity, policy or practice of the employer... that the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law[.]" N.J.S.A. 34:19-3(a) (emphasis added). However, [t]he protection against retaliatory action provided by this act pertaining to disclosure to a public body shall not apply to an employee who makes a disclosure to a public body unless the employee has brought the activity, policy or practice in violation of a law, or a rule or regulation promulgated pursuant to law to the attention of a supervisor of the employee by written notice and has afforded the employer a reasonable opportunity to correct the activity, policy or practice. Disclosure shall not be required where the employee is reasonably certain that the activity, policy or practice is known to one or more supervisors of the employer or where the employee reasonably fears physical harm as a result of the disclosure provided, however, that the situation is emergency in nature. [N.J.S.A. 34:19-4 (emphasis added).]
At the close of plaintiff's proofs, defendant moved for judgment arguing that plaintiff had failed to establish that he was reasonably certain that defendant knew of Vines's illegal activities before he reported it to the UCPO. The judge denied defendant's motion, ruling that plaintiff was entitled to rely upon Coutis's statement to him that he had reported Vines's misconduct to Cosgrove. Although defendant renewed this contention as part of his motion for judgment notwithstanding the verdict, the judge adhered to her earlier ruling.
Without citing to any case law, defendant argues for the first time on appeal that the "reasonable certainty" standard set forth in N.J.S.A. 34:19-4 necessarily "presents a higher hurdle than the 'reasonable belief' standard required by N.J.S.A. 34:19-3." According to defendant, because the "reasonable belief" standard is an objective one which requires first-hand knowledge, or direct proof, of the wrongdoing, it stands to reason that plaintiff was likewise required to demonstrate that he "actually was certain" that defendant knew of Vines's activities in order to satisfy the reporting requirement in N.J.S.A. 34:19-4. In defendant's view, Coutis's statement to plaintiff that he complained to Cosgrove and the UCPO regarding Vines, which was not admitted for proof of his state of mind, and not for the truth of the matter asserted, could only establish plaintiff's subjective belief. As such, defendant maintains that it was entitled to judgment.
As set forth above, the "reasonable belief" standard set forth in N.J.S.A. 34:19-3 does not require first-hand knowledge, or actual or direct proof, of the activity. Defendant's proposed interpretation is contrary to the ordinary meaning of the terms. The qualifier "reasonably" is generally understood to mean rationally supported, Webster's Ninth Collegiate Dictionary 981 (9th ed. 1984), not actually so, as defendant suggests. Accordingly, we reject this aspect of defendant's argument.
Defendant also argues that, because plaintiff did not expressly identify his certainty that the EPD already knew of Vines's activities as one of his reasons for reporting the matter to the UCPO, rather than the EPD's Internal Affairs Unit, he did not prove that he actually held this belief. Defendant suggests that plaintiff did not, in fact, hold this belief, but was instead simply pursuing a personal vendetta against Vines and simply chose to bring his information to an outside authority based upon his feelings of mistrust towards the Internal Affairs Unit of the EPD. In making this argument, defendant overlooks Coutis's disclosure to plaintiff regarding his complaint to Cosgrove, the fact that plaintiff had complained to the EPD about Vines previously and that as far as he was concerned, the EPD had done nothing. While plaintiff may not have expressly identified his belief in the EPD's awareness of, and indifference to, the allegations of wrongdoing swirling around Vines, the jury could have reasonably inferred that plaintiff held this belief at the time he opted to consult the UCPO.
Plaintiff argues, as alternate bases for affirmance, that:
(1) he was otherwise excused from the reporting requirement because of the EPD's conflict of interest and its failure to satisfy the posting requirement contained in N.J.S.A. 34:19-7;
(2) he actually satisfied the reporting requirement because the UCPO qualified as the EPD's "supervisor"; and (3) defendant waived its notice defense. These arguments were not raised or ruled upon below. Accordingly, we decline to address them on this appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Defendant contends that the reassignment of plaintiff to the Property Room did not constitute a retaliatory act under CEPA. In his cross-appeal, plaintiff argues that the size of his compensatory award was impacted by the trial judge's erroneous decision not to permit the jury to consider numerous other incidents, aside from the 2000 transfer, as retaliatory actions taken by defendant against plaintiff following his 1999 disclosure regarding Vines. We reject both arguments.
a. Transfer to the Property Room
CEPA defines actionable retaliation as "the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment." N.J.S.A. 34:19-2(e). Qualifying "other adverse employment actions" must constitute "serious intrusions into the employment relationship beyond those solely affecting compensation and rank." Beasley v. Passaic County, 377 N.J. Super. 585, 608 (App. Div. 2005). In certain instances, a transfer may be found to be a de facto demotion. Mancini v. Twp. of Teaneck, 349 N.J. Super. 527, 564-65 (App. Div. 2002), aff'd as modified on other grounds, 179 N.J. 425 (2004). Circumstances to consider are whether the transferee's new position is isolating, involves unpleasant work conditions or is without room for growth, and whether it is not commensurate with the transferee's experience or previous responsibility. Shepherd v. Hunterdon Dev. Ctr., 174 N.J. 1, 27 (2002); Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 360 (App. Div.), certif. granted, 174 N.J. 191 (2002), appeal dismissed, 177 N.J. 217 (2003).
In our earlier unpublished written opinion reversing the initial grant of summary judgment in this case, we concluded that plaintiff's allegations with respect to his transfer to the Services Department "if credited, present a prima facie showing of retaliatory action." In support of this conclusion, we viewed in a favorable light plaintiff's allegations that, among other things, the position was considered a "dumping ground," that he was isolated and had lost supervisory standing within the department, and that the officer previously assigned to this position had been put there as a punitive measure, as touted by the mayor.*fn3 After considering the proofs, the jury obviously accepted plaintiff's position.
Defendant now contends that, contrary to the jury's finding, plaintiff's transfer to the Property Room was not a de facto demotion because: (1) securing the voluminous evidence collected by the EPD to be used in the criminal justice system was an essential function of the Department; (2) plaintiff was not restricted to the basement; and (3) plaintiff was permitted a change in his work schedule. According to defendant, while plaintiff's reassignment may have bruised his ego, this did not make the transfer actionable under CEPA. The jury concluded otherwise, and we perceive no miscarriage of justice under the law. Dolson, supra, 55 N.J. at 7. See also Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000) (recognizing the great deference owed to a jury's verdict).
Plaintiff maintains that defendant's present argument is barred in light of our ruling in 2004 and because defendant failed to raise this argument in his post-trial motions.
However, in our earlier opinion, we did not rule that the transfer necessarily constituted a retaliatory action. Rather, we ruled that sufficient facts had been raised to submit the issue to the jury.
As defendant correctly points out, adverse employment actions do not qualify as retaliation under CEPA "merely because they result in a bruised ego or injured pride on the part of the employee." Klein, supra, 377 N.J. Super. at 46. On the other hand, the jury was entitled to find and did find, that plaintiff suffered more than injured pride as a result of his transfer. The record supports such a finding in that plaintiff, a seasoned officer with extensive investigative experience and special expertise in narcotics trafficking, was essentially removed from active duty and placed in a position where his skills could not be utilized, and he had no room for further advancement. He was relegated to the "dungeon," and his duties could be viewed as so insignificant to the department that no one even attended to matters reaching plaintiff's desk when plaintiff went out on sick leave for over seventeen months. Plaintiff was isolated in undesirable surroundings and stripped of all of his supervisory authority over other EPD officers. The jury was entitled to accept plaintiff's representations that he was given no choice but to work in the basement and also that his supervisor subjected him to unduly intense scrutiny and repeatedly rejected his attempts to exert what little authority he had to improve the functioning of the Property Room.
In view of the foregoing, the jury's finding that plaintiff's 2000 transfer to the Property Room constituted a retaliatory act was amply supported by the record. It certainly does not appear clearly and convincingly that a miscarriage of justice under the law has occurred. R. 4:49-1.
b. Other Retaliatory Acts
In his cross-appeal, plaintiff argues that the size of his compensatory award was adversely impacted by the trial judge's erroneous decision not to permit the jury to consider numerous other incidents, aside from the 2000 transfer, as retaliatory actions. Retaliation under CEPA need not be a single discrete action; rather, it can include "many separate, but relatively minor, instances of behavior directed against an employee that may not be actionable individually, but that combine to make up a pattern of retaliatory conduct." Green v. Jersey City Bd. of Educ., 177 N.J. 434, 448 (2003); accord Nardello v. Twp. of Voorhees, 377 N.J. Super. 428, 435 (App. Div. 2005). "A pattern of conduct by an employer that adversely affects an employer's terms and conditions of employment can qualify as retaliation under CEPA." Beasley, supra, 377 N.J. Super. at 609.
In our 2004 opinion, we rejected plaintiff's contention that defendant also retaliated against him by virtue of the disciplinary actions brought against him and the required psychological evaluation. We stated, the mere fact that disciplinary actions were brought against him does not in and of itself show a pattern of harassment sufficient to permit a jury to conclude that adverse employment action was taken against him. This is not to say, however, that if plaintiff can otherwise demonstrate retaliatory action that he is precluded from showing that the disciplinary charges on which he was found not guilty were ill-motivated or that he was treated disparately. The present record permits the conclusion that some of the charges were inadequately investigated, without adequate foundation, and brought selectively against plaintiff....
We also agree with the trial court that requiring plaintiff to undergo a psychological assessment, in and of itself, does not constitute a retaliatory action.
There is no evidence of adverse consequences flowing from that evaluation. The vast majority of decisions that have considered this issue have concluded that a psychiatric examination does not constitute an adverse employment action as a matter of law. [(Emphasis added).]
During a charge conference at the end of the case, plaintiff's counsel argued that the alleged retaliatory actions on the part of defendant should not be limited to plaintiff's two transfers, but should also include Zalinsky's treatment of plaintiff, the shunning plaintiff experienced, and the various disciplinary actions. Plaintiff's counsel maintained that, while the disciplinary actions were not themselves retaliatory, they could be considered as part of a pattern of retaliation. Notably, during this argument, plaintiff's counsel eventually conceded that Zalinksy's conduct really went to damages. Ultimately, the court rejected plaintiff's argument and opted to reference Zalinsky's conduct in the damages section of her charge only.
Plaintiff now argues that the trial judge should have defined the retaliatory action here to include: (1) the psychological evaluation plaintiff was ordered to undergo; (2) the written reprimand plaintiff received as a result of the missing evidence incident; (3) the charges brought against plaintiff in 2002 as a result of the altercation with Zalinsky which were ultimately withdrawn; (4) Zalinsky's harassment of plaintiff; (5) the shunning plaintiff experienced within the department; and (6) plaintiff's selective discipline in 1999. In a related argument, plaintiff contends that the trial court improperly excluded the evidence that would have shown that plaintiff was treated disparately in 1999.
First, we recognize that "in reviewing a trial court's evidential ruling[s], an appellate court is limited to examining the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). Further, as we noted in our earlier decision, being ordered to undergo a psychological evaluation does not constitute an adverse employment action as a matter of law. Caver v. City of Trenton, 420 F.3d 243, 256 (3d Cir. 2005); Breaux v. City of Garland, 205 F.3d 150, 158 (5th Cir.), cert. denied, 531 U.S. 816, 121 S.Ct. 52, 148 L.Ed. 2d 21 (2000). Moreover, plaintiff expressly asked the trial judge not to reference the psychological evaluation in the final charge. We find no misapplication of discretion in that regard.
Next, with respect to the reprimand, it must be noted that the judge actually excluded all reference to the disciplinary charges filed by Zalinsky in connection with this incident as well as the actual reprimand (but not the factual basis therefor). In any event, substantiated disciplinary charges are not considered retaliatory. Hancock, supra, 347 N.J. Super. at 361. Likewise, the imposition of a minor sanction is insufficient to constitute a retaliatory action under CEPA. Id. at 360.
The 2002 disciplinary charges were ultimately withdrawn and the existence of those charges was not made known to the jury. Beyond that, it must be considered that retaliatory action does not encompass action taken to effectuate the discharge, suspension or demotion, but rather is confined to "personnel actions that have an effect on either compensation or job rank." Id. at 360 (quoting Zamboni v. Stamler, 847 F.2d 73, 82 (3d Cir.), cert. denied, 488 U.S. 899, 109 S.Ct. 245, 102 L.Ed. 2d 233 (1988)). Further, "[r]escinded employer action that makes plaintiff completely whole and remedies a prior decision cannot constitute an adverse employment action." Beasley, supra, 377 N.J. Super. at 607.
As noted above regarding Zalinsky's alleged harassment of plaintiff, plaintiff's counsel agreed that this evidence went to the issue of damages. Likewise, the shunning of which plaintiff complained was largely committed by his fellow officers, not his superiors, and, while also relevant to damages, such shunning cannot be construed as an action affecting the terms and conditions of plaintiff's employment.
Plaintiff also argues that the trial court erred in excluding evidence regarding the disparate treatment of another officer, Tracy Finch, who also failed to report Vines's alleged illegal drug activities to Internal Affairs. More particularly, during the trial, plaintiff's counsel informed the court that Finch testified at plaintiff's disciplinary hearing that he also received information from various street sources that Vines was involved in illegal drug activity. Finch did not report this information to Internal Affairs, and he also refused to speak of it to Internal Affairs when they brought him in for questioning. He explained that he did not report the information because he did not think it was credible. Finch testified about the information he had received only when compelled to do so by the Union County grand jury. Unlike plaintiff, he was never charged by the EPD with failure to report.
Plaintiff's counsel argued that this evidence was admissible as proof of disparate treatment. Defense counsel responded that defendant would be unduly prejudiced by this evidence because the two situations were not sufficiently similar to warrant a conclusion of disparate treatment. The judge ruled that plaintiff could testify as to what Finch told him about Vines, but that disparate treatment was not an issue in the case.
In accordance with our 2004 opinion, we said that, if plaintiff could otherwise demonstrate retaliatory action, he could show that disciplinary charges on which he was found not guilty were ill-motivated or the result of disparate treatment. Here, plaintiff was found guilty on one of the 1999 charges. Thus, the admissibility and the balancing of the potential for confusion or prejudice was subject to the exercise of sound discretion by the trial court. It should be noted, however, that the two situations were not entirely similar since Finch allegedly did not believe the information he had received and made no report whatsoever on Vines. By contrast, plaintiff found the information he had gathered sufficiently credible, but then chose to report it selectively. He did not report it internally, as he was supposed to, but did report it externally, against department policies. While we reject plaintiff's contention that evidence of disparate treatment was improperly excluded from the case, we are also of the view that any error was harmless.
Defendant contends that the trial court erred in denying its motion for a new trial based upon false testimony provided by Dr. Meyer. Dr. Meyer testified on direct examination as follows:
[Plaintiff's counsel]: Dr. Meyer, are you getting paid any money to testify for [plaintiff] in this matter?
[Meyer]: I'm not being paid to testify.
[Plaintiff's counsel]: And why is it then, sir, that -- Have you been subpoenaed?
[Meyer]: No, I have not.
[Plaintiff's counsel]: Okay. Why is it then, sir, that you agreed to testify voluntarily?
[Meyer]: Well, I have a lot of respect for [plaintiff]. As a psychiatrist I witness a lot of human suffering, and I have known [plaintiff] for quite a few years, and I think he's been through quite a bit. And also as a citizen I am grateful there are public servants who are willing --At a sidebar conference following a defense objection, defense counsel asked plaintiff's counsel whether Dr. Meyer was being paid for either his time or his testimony. Plaintiff's counsel replied that Dr. Meyer was "not being paid at all." The trial judge subsequently ruled that Dr. Meyer's answer could stand but instructed plaintiff's counsel not to pursue the matter any further.
Thereafter, as part of his post-trial application for fees and costs, plaintiff's counsel included a ledger sheet indicating that $2,410.65 had been paid to Dr. Meyer. Defense counsel subsequently advised the trial court, as part of a motion for a new trial that Dr. Meyer had perjured himself on the stand. In response to defense counsel's allegation, plaintiff's counsel filed an affidavit dated August 18, 2006, wherein he insisted that Dr. Meyer's trial testimony was entirely truthful and accurate at the time it was given. Plaintiff's counsel maintained that, during a pre-trial meeting with Dr. Meyer on April 26, 2006, Dr. Meyer specifically told him that "he did not expect to be paid for his testimony in the matter, that he believed in [plaintiff']s commitment to his lawsuit and that, although he did not look forward to testifying, he would do so for [plaintiff]." Counsel represented that Dr. Meyer did not deviate from this position throughout the trial.
According to plaintiff's counsel, it was only during a June 21, 2006 phone conversation, five days after the verdict, that Dr. Meyer for the first time inquired about whether he could be reimbursed for the income he had lost as a result of the two days he had spent at trial. Plaintiff's counsel noted that defense motions had resulted in Dr. Meyer's spending a greater than anticipated amount of time in court on June 1, 2006, and then being forced to return to court on June 5, 2006. As such, counsel instructed Dr. Meyer to submit a bill for his time. Dr. Meyer subsequently submitted a bill in the amount of $2,410.65 (including parking fees and mileage), which was paid out of money which plaintiff had previously provided to counsel for the payment of trial expenses. According to plaintiff's expense ledger maintained by plaintiff's counsel through June 26, 2006, plaintiff had a $7,786.20 credit as of May 31, 2006, which was reduced to $5,375.55 as a result of a disbursement of $2,410.65 ostensibly made on June 20, 2006.
At the hearing on defendant's new trial motion, defense counsel argued that Dr. Meyer's testimony was perjurious regarding his "free" appearance on plaintiff's behalf and provided grounds for reversal since Dr. Meyer was the only witness presented on damages. Defense counsel conceded, though, that plaintiff's counsel's affidavit appeared to be truthful, and that, as such, it did not appear that Dr. Meyer's testimony had been intentionally orchestrated to dupe the jury. Nonetheless, defense counsel insisted that plaintiff's counsel should have refused Dr. Meyer's subsequent request for payment in order to preserve the integrity of the trial.
The trial court subsequently ruled that there was no evidence that plaintiff's counsel's dealings with Dr. Meyer occurred any differently from what was set forth in counsel's affidavit. The judge observed that, as such, it appeared that Dr. Meyer was not lying when he had testified that he was not being paid. The trial judge was also satisfied that there was no proof that Dr. Meyer had harbored a secret intent to secure payment after the trial. Accordingly, the trial judge refused to disturb the verdict based upon post-trial events and speculation. The judge denied, though, any reimbursement of this amount to plaintiff.
In some circumstances, the willfully false testimony of a witness may justify setting aside a verdict or judgment. Linden v. Benedict Motel Corp., 370 N.J. Super. 372, 396 (App. Div.), certif. denied, 180 N.J. 356 (2004). A party seeking to disturb final judgment on this ground must show by clear, convincing and satisfactory evidence that the perjured testimony was "not false merely, but... willfully and purposely falsely given, and... material to the issue tried[,] and not merely cumulative but probably... controlled the result." Shammas v. Shammas, 9 N.J. 321, 330 (1952). Further, the falsity of the testimony "must not have been discoverable by reasonable diligence prior to trial." Linden, supra, 370 N.J. Super. at 396.
Defendant contends that it is entitled to a new trial since Dr. Meyer, plaintiff's sole witness on damages, willfully gave false testimony, which bolstered his credibility. According to defendant, since plaintiff's expense ledger indicated that payment had been made to Dr. Meyer on May 31, 2006, five days before he testified, it was clear that Dr. Meyer deliberately lied on the stand when he stated that he was not being paid and not seeking to be paid for appearing on plaintiff's behalf.
However, contrary to defendant's representations and, as noted above, plaintiff's expense ledger did not reflect a May 31, 2006, payment to Dr. Meyer. Rather, the ledger indicated that a payment of $2,410.65 was made to Dr. Meyer on June 20, 2006, well after his testimony on June 1 and 5, 2006. Defense counsel did not challenge the veracity of this affidavit at the new trial motion hearing; however, in making its argument, defendant ignores plaintiff's counsel's affidavit which explained the series of events which led to Dr. Meyer's post-trial payment. The trial judge determined that there was no secret intent demonstrated and that defendant did not show that Dr. Meyer willfully gave false testimony. Even assuming that defendant made such a showing, we are not persuaded that the testimony at issue would have had the capacity to control the result.
Defendant also argues that the lower court erred in permitting Dr. Meyer to testify regarding the proximate cause of plaintiff's emotional distress without the prior production of an expert report. In his cross-appeal, plaintiff argues the lower court erred in refusing to permit Dr. Meyer to testify regarding the permanency of plaintiff's condition. We reject both arguments.
Shortly after Dr. Meyer took the stand, defense counsel objected to his testifying regarding the proximate cause of, and permanence of, plaintiff's emotional distress since he had not provided an expert report during discovery. Relying upon the case of Stigliano v. Connaught Labs, Inc., 140 N.J. 305 (1995), the trial judge ruled that, while Dr. Meyer could testify regarding the cause of plaintiff's problems, he could not testify regarding the permanency of his condition. In a related ruling, the judge also determined that Dr. Meyer could only testify regarding his treatment of plaintiff through November 15, 2004, the final date for which treatment notes had been provided to defendant during discovery. Although plaintiff's counsel announced during the argument that he had located additional notes through 2006, the judge ruled that those notes could not be addressed during Dr. Meyer's testimony because they had not been provided during discovery and raised issues that would unnecessarily complicate the case. The judge further observed that these notes made no mention of the permanency of plaintiff's condition.
Defendant renews its argument that Dr. Meyer should have been prohibited from testifying regarding the proximate cause of plaintiff's complaints due to plaintiff's failure to furnish an expert report from him in discovery. In making its argument, defendant concedes that, in Stigliano, supra, 140 N.J. at 312-14, our Supreme Court held that a treating physician, who was offered as a fact witness, and not as an expert on causation, could nonetheless offer his or her opinion as to the cause of his patient's condition because "[t]he determination of causation [was] an essential part of diagnosis and treatment." Nonetheless, defendant insists that an unpublished opinion, Meltzer v. Liberty Mutual Group, No. 4418-04T2, (App. Div. June 14, 2007) (slip op.), supports its position. We do not agree, and we decline to discuss Meltzer, taking cognizance of Rule 1:36-3, which directs that "[n]o unpublished opinion shall constitute precedent or be binding upon any court[,]" and that "no unpublished opinion shall be cited by any court."
In his cross-appeal, plaintiff contends that the lower court erred in refusing to permit Dr. Meyer to testify regarding the permanency of plaintiff's condition. According to plaintiff, the judge's decision was premised upon an unreasonably narrow reading of Stigliano and plaintiff's untimely production of Dr. Meyer's post-2004 treatment notes. Not only was the judge's reading of Stigliano eminently reasonable, but the record reflects that the disputed notes made no mention of the permanency of plaintiff's condition. Indeed, it was known to all at trial that a different doctor was expected to testify regarding the permanency of plaintiff's condition. As such, we perceive no mistake in the trial judge's exercise of discretion to refuse to permit Dr. Meyer to testify regarding the permanency of plaintiff's condition. Hisenaj, supra, 194 N.J. at 16.
Defendant insists that the court actually permitted Dr. Meyer to offer an improper opinion regarding the permanency of plaintiff's condition when he testified that plaintiff's prognosis in 2003 was guarded, and that he felt, at that time, that plaintiff needed "lifetime treatment with anti-depressant medication." Dr. Meyer made these comments in the context of explaining his authorization of plaintiff's return to work in 2003. In any event, we note that, the trial judge specifically instructed in her charge to the jury, that "any award you make must cover the damages suffered by plaintiff since the violation up until the end of 2004 which was the time frame encompassed by Dr. Meyer's testimony." Thus, any error engendered by the disputed testimony was rendered harmless.
Defendant contends that the damages award for emotional distress cannot stand because it necessarily contained a component for non-compensable litigation-induced stress. During cross-examination, Dr. Meyer acknowledged that one of plaintiff's stress factors was "being a litigant" and that plaintiff had mentioned the case several times during their sessions. Thereafter, on re-direct examination, Dr. Meyer testified as follows:
[Plaintiff's counsel]: Dr. Meyer, [defense counsel] asked you a number of questions relating to the fact that in 2002, 2003 and 2004 [plaintiff] would from time to time raise the status of his litigation.
[Meyer]: Yes, he did.
[Plaintiff's counsel]: And he asked you whether... the ups and downs of the litigation contributed to his stress in any way?
[Meyer]: Yes, he asked me about it.
[Plaintiff's counsel]: Now, I think you also talked about work stressors.
[Plaintiff's counsel]: Now,... can you tell the... jury to what extent the work stressors and to what extent the litigation stressors, in your opinion, contributed to his major depression severe?
[Meyer]: Well, I think they both were significant factors for him, but I think in understanding [plaintiff], I think, in my opinion, these stressors were intertwined and really were very difficult to separate them, because they basically involved dealing with the same individuals and the same circumstances for him. I think that to keep them apart is probably not possible. I think [plaintiff]'s feelings about himself are tied into being a police officer, are tied into relationships with the Police Department, and being involved in a litigation about this core issue, I mean, I think is a major stressor. But I don't think the litigation itself necessarily was the major stressor.
Following that testimony, defense counsel argued that, because Dr. Meyer was unable to separate plaintiff's compensable work-related stress from his non-compensable litigation-induced stress, any damages award would necessarily be speculative. The trial judge, however, did not believe that precise testimony was required; the judge determined that an appropriate jury charge would adequately address the situation.
Ultimately, in her final charge, the judge instructed the jury that, in any emotional distress damages award, it could not consider "any pain and suffering, impairment, or loss of enjoyment suffered by the plaintiff which you find was proximately caused by this lawsuit." Defendant insists that, because plaintiff "failed to present any testimony... that would allow the jury to separate out" plaintiff's work-related stress from his litigation-induced stress, "[i]t is clear that the jury award in this case did not exclude litigation-stress damages."
Defendant is correct that a plaintiff "may not recover for litigation-induced distress as a separate component" of emotional distress damages. Picogna v. Bd. of Educ. of Twp. of Cherry Hill, 143 N.J. 391, 399 (1996). However, nothing in Picogna, or its progeny, see Hill v. N.J. Dep't. of Corr., 342 N.J. Super. 273 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002), indicates that a precise quantification is required where there are multiple stress sources. Further, in making its argument, defendant disregards the fact that the jury here was expressly instructed not to award damages for litigation-induced stress. We must presume the jury followed this instruction.
Finally, defendant contends that the lower court erred in denying its request for a remittitur. "Remittitur is designed to bring excessive damages awarded by a jury to the level that the court knows is within the limits of a proper verdict and thereby avoid the necessity of a new trial." Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 491 (2001). However, remittitur is an extraordinary remedy that should only be employed when a jury's damages award "is so... disproportionate to the injury and its sequela... that it may be said to shock the judicial conscience." Johnson v. Scaccetti, 192 N.J. 256, 281 (2007).
In her decision denying defendant's motion for a remittitur, the trial judge initially observed that the jury in this case had been very serious about its job, and could not be characterized as a "runaway" jury. She then noted that plaintiff had testified very credibly regarding the negative effect of his transfer to the "basement," and of his subsequent mistreatment by Zalinsky, both psychologically and physically. The judge pointed out that Dr. Meyer's testimony had further bolstered plaintiff's claim of severe emotional distress and attendant physical symptoms. The judge was persuaded that the indignities visited upon plaintiff had been particularly difficult for him to bear because plaintiff's self-worth was largely premised upon his being a police officer. Ultimately, the judge found that, while the $600,000 verdict was high, it was in no way shocking to her considering the record in this case.
Defendant contends that, contrary to the lower court's finding, the damages award here was clearly excessive given the "paucity of evidence" presented to prove these damages and the limited time period for which recovery was permitted. We are satisfied that there is sufficient credible evidence in the record to support the trial judge's determination that, under these circumstances, the award here was not shocking or unwarranted. There was very compelling testimony offered by plaintiff regarding the stress he experienced as a result of his transfer to the "basement," his treatment by his direct supervisor, the physical symptoms it produced, and the effect it had upon his enjoyment of life and interpersonal relationships.
Additionally, Dr. Meyer reported that he was forced to treat plaintiff's severe depression with a combination of medications and that plaintiff only attained a partial remission. Because plaintiff, a veteran officer with an exemplary record, identified so strongly with his chosen profession, the alleged mistreatment cut him to the core. It was for the jury to assign a monetary value, and the value they reached, while substantial, does not lead us to conclude that there has been a manifest miscarriage of justice. Jastram v. Kruse, 197 N.J. 216, 228-31 (2008).
To the extent either party has raised argument in its appellate brief that is not specifically addressed in this opinion, including the argument that the award of attorneys' fees were inadequate, we are of the view that such arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed as to both the appeal and the cross-appeal.